The Separate But Unequal Constitution

84 Pages Posted: 27 Mar 2014 Last revised: 16 Apr 2019

See all articles by Adam Lamparello

Adam Lamparello

Georgia College and State University; Assistant Professor of Public Law

Charles MacLean

Metropolitan State University School of Law Enforcement and Criminal Justice

Date Written: 2014

Abstract

The Constitution should not be a political chess match, and outcomes should not depend on the composition of the Supreme Court. The text’s written and unwritten mandates speak to a single value that should unite jurists of all interpretive persuasions: the people — not legislatures or courts — own the Constitution’s enumerated rights, and have a corresponding right to define those that are not enumerated. But those rights have not been fully realized because the Constitution has been applied in a separate — and unequal — manner.

The wealthy have increased access to the political process, the poor are disproportionately affected by the criminal justice system, and the Court has the final say in many matters that should be left to the democratic discourse. The Constitution does not always guarantee equal outcomes, but it does envision equal access, which is the predicate to an active — and evolving — form of liberty. The Court should embrace a new form of pragmatism that enhances each citizen’s participation in local and national governance, and that eschews overly narrow — or impermissibly broad — interpretations of the text. If the Constitutional cannot guarantee procedural and substantive equality for all, then active liberty and participatory democracy will belong to the few.

Keywords: constitutional law, originalism, democracy, courts, jurisprudence, pragmatism

JEL Classification: K40

Suggested Citation

Lamparello, Adam and Lamparello, Adam and MacLean, Charles, The Separate But Unequal Constitution (2014). DePaul Law Review, Vol. 64, No. 1 (Fall 2014, Forthcoming), Available at SSRN: https://ssrn.com/abstract=2414721 or http://dx.doi.org/10.2139/ssrn.2414721

Adam Lamparello (Contact Author)

Georgia College and State University ( email )

Milledgeville, GA 31061-0490
United States

Assistant Professor of Public Law ( email )

Charles MacLean

Metropolitan State University School of Law Enforcement and Criminal Justice ( email )

700 East Seventh Street
St. Paul, MN 55106
United States

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