The framework of equal protection analysis in America

Liu Jianlong

Chapter 11 in Renmin Chinese Law Review, 2023, pp 278-310 from Edward Elgar Publishing

Abstract: Though the Constitution and the laws of China offer a comprehensive normative system for the realization and guaranteeing of the right to equality, such right has been frequently violated. The highlighted rationality review is unable to realize the goal of the Constitution. Therefore, it is necessary to strengthen the guaranteeing of right to equality by introducing a framework of analysis, with the purpose of equipping the guaranteeing system with ‘teeth’ to ‘bite off’ the violations. In this regard, the American framework of equal protection analysis should be considered as a model. The equal protection amendment and its content were formulated after the American Civil War and have experienced a long and rough progress. The framework of equal protection analysis is a vital part of the equal protection jurisprudence. It is a complicated multi-tier framework compiled with rationality review, intermediate review and strict scrutiny. It applies a standard of review to a classification according to the criteria and importance of the right involved and reviews whether the means adopted is substantially related to the end pursued. It helps to protect the rights and control the powers. However, it has been criticized of being impracticable, subjective and too formal, which might be cured by shifting the weight on the means of scrutiny, consolidating the classification criterions and highlighting a more comprehensive consideration while determining which standard of review should apply.

Keywords: Asian Studies; Law - Academic (search for similar items in EconPapers)
Date: 2023
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