Dissertation

The hermeneutics of equal protection analysis

Botts, Tina Fernandes

2011

Overview

The meaning of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is a hotly contested issue in contemporary constitutional theory. Contemporary interpretations generally fall into one of two categories, understood to be theoretically opposed: those derived through originalism and those derived through non-originalism. From the perspective of an approach to constitutional interpretation based in philosophical hermeneutics, however, there is a third alternative available for thinking about what the Equal Protection Clause means known as legal hermeneutics. Legal hermeneutics acknowledges the importance of the text, as originalism does, in the determination of credible meaning, but also acknowledges the roles of history, socio-historical context, and the identity of the interpreter, as nonoriginalism does. In this way, legal hermeneutics acts as a sort of middle road between originalist and non-originalist approaches. However, the strength of legal hermeneutics is not that it takes this middle road, but that it, unlike the other approaches, is grounded in and faithful to the necessary structures of the interpretive process itself. The following work uses legal hermeneutics to develop a more hermeneutically credible meaning of the Equal Protection Clause than either originalist or non-originalist approaches are capable of providing. The result is a meaning of the Equal Protection Clause according to which (1) the Clause operates as a remedial measure to protect the equality rights of members of marginalized, oppressed, and subjugated groups only, and (2) strict scrutiny is the applicable level of judicial review for any hermeneutically credible violation of the Equal Protection Clause.

• Publisher: ProQuest Dissertations & Theses
• Subject: Law / Philosophy / Political science
• ISBN: 9781124893440, 112489344X