The article can be downloaded here.

After Washington v. Davis, the Equal Protection Clause, as in Plessy v. Ferguson, was interpreted to prevent racial justice for communities of color. The Davis Court announced the intent doctrine: that the Equal Protection Clause only protects those discriminated against pursuant to a discriminatory motives.

But as Charles Lawrence announced in his piece entitled The Id, The Ego, and Equal Protection, discrimination is frequently the result of an unconscious mind. By focusing on a motive inquiry, moreover, courts limit remedy to the most overt of discriminatory acts. The evidentiary burden is too high.

Brando’s article argues that the Equal Protection Clause is no longer an effective tool for stigmatized minorities, and needs to be re-invigorated to further racial equality.

Those seeking to overturn Davis must, though, grapple with the reality that the original public understanding of the Equal Protection Clause does not render discriminatory acts resulting from unconscious bias unconstitutional.

Brando argues that the Fourteenth Amendment’s original understanding is an anachronism and the future of the intent doctrine must not hinge on the ratifying generation’s formulation. Originalists implicitly agree with this contention.

Indeed, Originalists’ equal protection opinions, particularly involving affirmative action, confound anyone with a basic knowledge of the Fourteenth Amendment’s legislative history. Originalists best establish how much the original understanding of the Fourteenth Amendment is unhelpful in dealing with contemporary race issues.

The Equal Protection Clause, writes Brando, must be re-invigorated so that its new understanding reflects both our deepening knowledge of unconscious bias and our appreciation for how a discriminatory motive can be easily hidden.

The article has already generated a reaction from Lawrence B. Solum, John E. Cribbet Professor of Law and Philosophy and Co-Director of the Institute for Law and Philosophy at the University of Chicago School of Law on the Legal Theory Blog:

I enjoyed this interesting piece, but it’s exposition of originalism does (by my lights) capture the content of contemporary originalist theory (the so-called “new originalism” or “original public meaning originalism”). In particular, the author might want to consider the distinction (original made by Mark Greenberg and emphasized by Jack Balkin) between original expected applications and the original public meaning of the constitutional text.

Brando graduated in June of 2008 with a J.D. from Harvard Law School, where he was a research assistant at both the Jamestown Project, a think tank, and at the Law School’s library researching various matters for professors. He was also was an opinion editorialist for the Harvard Law Record, the school’s newspaper.

He also published several works: Uncle Tom and Clarence Thomas: Is the Abuse Defensible?, The Veil of Fair Representation: Maurice Clarett v. NFL, “Acting White” and the Achievement Gap: Burden or Myth?: A Research Brief & Recommendations for Educators, Policymakers & Members of the Media, and Drastic Action: The 1983 Course Boycott at Harvard Law School.