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Concept of Equality, Equal Protection Clause, Substantive Due Process

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Jurisprudence | Law | Legal History | Legal Theory


Comments on Westen article The Empty Idea of Equality. The only way we know what direction to move in making reductions and increases in burdens is to have a concept of equality in mind. The only way we can know that one burden is 'great' and another burden is 'considerably lesser,' to use the words in Westen's standard, is to compare the burdens. But comparison presupposes a measure of equality, for we cannot know that one burden is greater than another unless we first have a concept of when the two burdens are equal. Westen's standard, therefore, is logically posterior to the concept of equality. If we start with the Equal Protection Clause, then a standard such as Westen's, which he attempts to ground in substantive due process, can be given operative content.