The Download of the Week is The Lost History of Governance and Equal Protection by Victoria Nourse and Sarah Maguire. Here is the abstract:
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Constitutionalists believe that the Equal Protection Clause died during
the early decades of the twentieth century. We aim to correct the
record on this claim and, in the process, demonstrate equality's long
held aspirations to political theory. Decades before Professor John
Hart Ely and public choice, equal protection aspired to be a principle
of governance as much as a principle of classification or
discrimination. This tradition was not limited as is modern equality
law to race, sex, or even caste, but aimed to tie equality to the
duties of representatives to govern for all, not simply for some. This
Article argues that early twentieth-century equal protection law strove
in imperfect ways for a theory of abusive representation; it naïvely
hoped that the generality of legislation could bind majorities to
minorities. To resurrect and articulate an analogous modern theory
would require far more than law-office history; it would require
fleshing out what the old theory of equality failed to do: to construct
a convergence-forcing method that would tie the fate of legislative
majorities to that of minorities. In that spirit, we offer a proposal
that emphasizes (à la the new governance literature) the power of
"embedded constitutionalism," a proposal that combats abusive
representation by forcing the active consideration and deliberation of
constitutional values in more powerful institutions" in this case,
legislatures.
