The Equal Protection of the Laws

Click here to read The Equal Protection of the Laws, Tussman’s seminal article on the Fourteenth Amendment which appeared in the September 1949 issue of the California Law Review and was to become one of the most widely cited law review articles ever.  It was co-written with his good friend and U.C. Berkeley colleague Jacobus (Chick) tenBroek.  TenBroek, who was blind, went on to become one of the leading figures in the disability rights movement.

A rather prescient quote from the article:

We began this essay with the suggestion that Americans have been more concerned with liberty than with equality. Alvin Johnson, in a recent article in the Yale Quarterly, goes so far as to say that the idea of equality is no part of the authentic “American Ideology”.  But whatever our past or present preferences, it is certain that a concern with equality will be increasingly thrust upon us. We have tended to identify liberty with the absence of government; we have sought it in the interstices of the law. What happens, then, when government becomes more ubiquitous? Whenever an area of activity is brought within the control or regulation of government to that extent equality supplants liberty as the dominant ideal and constitutional demand.

 

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