Article by William Cohen
Professor Peter Westen has demonstrated convincingly that, at least sometimes, decisions under the equal protection clause can be understood only by incorporating constitutional values that are extrinsic to the concept of equality. The problem, he says, results from the obvious point that the fourteenth amendment does not require all persons to be treated alike. The core requirement of equality, rather, is that those persons who are alike be treated alike. No standards that derive from the equality principle, however, enable us to determine whether persons treated differently are ‘similarly situated’ or whether situations subject to different rules are alike. Thus, Westen concludes that the concept of equality in constitutional law is ‘empty’ or, to paraphrase Gertrude Stein, that ‘the trouble with equal protection is that there is no there there.’
About the Author
William Cohen. C. Wendell and Edith M. Carlsmith Professor of Law, Stanford University.
Citation
59 Tul. L. Rev. 884 (1985)