Progressivism-Updates

Progressivism-Updates - AT: Progressivism/Robin West DDI GT...

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AT: Progressivism/Robin West DDI GT 2K9 1 Progressivism/Robin West Tournament Updates West’s progressivist theory isn’t actually any shift from the normal way of interpreting the 14 th Amendment Sherry, Stanford Law Review, ’95 (Suzanna Sherry, University of Stanford Law Review, “Review Essay: ‘Progressive Constitutionalism: Reconstructing the 14 th Amendment’ by Robin West,” May 1995) West seeks a "new paradigm of meaning for the equal protection clause " because, in her words, the affirmative action debate "has come to a dead end." She proposes, therefore, "to start over, to go back to the beginning . .. in other words, to change the subject." Progressive Constitutionalism, she tells us, will "argue against both of these understandings of equal protection and . .. introduce a quite different interpretation." Her new paradigm focuses on the meaning of "equal protection" rather than on the meaning of "equality." In this manner, she asserts that the plainest possible meaning of the Equal Protection Clause is that "no state may deny to any citizen the protection of its criminal and civil law against private violence and private violation." In other words, "only the state shall have access to the use of unchecked and uncheckable violence to effectuate its will." There is, as she notes, some historical evidence for this interpretation: The refusal of Southern states to protect newly freed slaves from rampant white violence may have been one impetus for the enactment of the Fourteenth Amendment. Ultimately , however, West is unable to "change the subject." She breaks her promise to reject both of the existing approaches in favor of a new paradigm. Disappointingly, she comes down squarely on the side of the anti-subordinationists. Under her "new" progressive theory, West not only reaches all the same results as do the antisubordinationists, but later in the book , she [*1103] explicitly concludes that progressives , like antisubordinationists, support a " "substantive' understanding of . .. equality." In the course of deriving these results from the uncontroversial doctrine that the state must protect all persons equally from "private violence and private violation of trust," she recreates, at the level of "equal protection," the debate between the formalists and antisubordinationists over the meaning of "equality." Even West would agree with the plan Sherry, Stanford Law Review, ’95 (Suzanna Sherry, University of Stanford Law Review, “Review Essay: ‘Progressive Constitutionalism: Reconstructing the 14 th Amendment’ by Robin West,” May 1995) Her initial formulation and defense of the principle of equal protection is not controversial. She explains that a state denies the equal protection of the laws when it refuses "to punish, check, or deter . .. violence" against one group or "to extend to [one group] the legal forms of contract and property that [are] essential to their
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Progressivism-Updates - AT: Progressivism/Robin West DDI GT...

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