Equal Protection, “General Equality” and Economic Discrimination From a U.S. Perspective

5 Colum. J. Eur. L. 281 (1999)

Gerald L. Neuman. Herbert Wechsler Professor of Federal Jurisprudence, Columbia Law School.

The evolution of a country’s constitutional law reflects both the particular historical experiences of the country and general trends of intellectual history shared among countries. The United States inherited its human rights tradition from Europe. Although much of its development has been self-referential, implicit reliance on broader intellectual trends and even explicit invocation of European thinkers and European legal developments have also contributed. Meanwhile, U.S. constitutionalism has been influential in other countries, and received special attention-which does not mean unquestioning imitation-in Germany.

In the field of constitutional equality, the U.S. practice of regarding equality before the law as a norm that prohibits arbitrary legislation, and not just as a guarantee of the equal application of laws by judges and administrators, influenced debates on the interpretation of the Weimar Constitution, and has become important constitutional doctrine under the post-war German constitution, or Grundgesetz (GG) of 1949.1 U.S. case law was closely studied in the 1920’s by Professor Gerhard Leibholz, later a Justice of the Federal Constitutional Court, who approved its focus on “objective arbitrariness”–the objective absence of any reasonable justification for unequal treatment.

U.S. equality law has evolved considerably since the 1920’s, partly by rejecting some of the cases that influenced German constitutional thinking. That evolution has not yet produced a consistent and stable doctrine, however, and methodological disagreements persist. German equality law (which has not ignored later developments in the United States) has also evolved, and has supplemented the inquiry into objective arbitrariness with other concepts. One might therefore ask whether U.S. and German equality law might reconverge; whether the modem German constitutional experience offers solutions to the dilemmas of U.S. equality law; and whether U.S. experience offers insights into German practice. Or are conditions in the United States and Germany insufficiently comparable for convergence to be likely or desirable? Or, even if conditions are comparable, has the path of constitutional development in each country led their conceptions of equality away from a common basis, so that convergence is not feasible? It is with these questions in mind that I will discuss “general equality” law from the United States perspective, with specific attention to economic discrimination.