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May 04, 2016


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" Descriptively, the criteria we use to assess which classifications are “suspect” are nearly all transient in character." Boy, that "nearly" is sure doing a lot of work.

David Schraub

Is it? Discrete and insular minorities can become fully-integrated majorities. Groups burdened by prejudice can become well-liked members of society. The politically powerless can gain political power. Irrelevant traits can gain relevance as social circumstances change. Even immutability is less stable than one might think (social construction of racial categories, sex-reassignment surgery). The only attribute of suspect classification criteria that is even arguably non-transient is a history of discrimination (since the history persists) -- but even that fades over time and loses salience.


Your motivating claim is that the Carolene Products fn 4 factors are debatable. I don't disagree, and neither does the Supreme Court - that's why they debate them in Equal Protection cases. That is a far cry, however, from claiming that whether or not race, national origin, or even homosexuality, for example, are immutable is either debatable or an issue that any Supreme Court would actually debate.


Excellent post, David! Please ignore the troll (who clearly doesn't even understand what you're saying).

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