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Title: Changing Race: Fluidity, Immutability, and the Evolution of Equal-Protection Jurisprudence

Citation Type: Journal Article

Publication Year: 2019

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Abstract: One of the bedrock principles of American constitutional jurisprudence is its commitment to provide heightened scrutiny to laws that distinguish amongst us on the basis of certain immutable traits. But race-the very trait that has historically received the most searching form of scrutiny under modern equal-protection doctrine-is far more fluid than the law has traditionally recognized. This Article examines the mutability of race-both through its social and legal construction-and the resulting impact of that fluidity on the theoretical underpinnings of constitutional jurisprudence. Specifically, using examples such as the debates around Rachel Dolezal and Elizabeth Warren's heritage, the Census Bureau's recent proposal to create a new race (MENA) for certain individuals previously classified as white, legal controversies around eligibility requirements for affirmative action policies, and discrimination claims involving language use and personal appearance, this Article argues that modern understandings about the mutability of race can inform interpretations of the scope of Fourteenth Amendment protections and their application to broader notions of identity, whether fixed or chosen. In short, the Article calls for a more robust understanding of the Fourteenth Amendment that moves beyond the myopic and ill-conceived fetishization of immutability that has problematically guided equal-protection jurisprudence over the past half-century.

Url: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1702&context=jcl

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Authors: Tehranian, John

Periodical (Full): Journal of Constitution Law

Issue: 1

Volume: 22

Pages: 1-80

Data Collections: IPUMS USA

Topics: Race and Ethnicity

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