I am interested in the philosophical implications of the two competing views of the Equal Protection Clause of the 14th Amendment.
It is often contended that an "individualist" view of what equal protection requires can't explain why only classifications based on race or sex require "heightened scrutiny," instead of the ordinary rational basis test. In some sense, this objection seems dead on. If what equal protection prohibits is the use of morally invidious classifications by state actors then certainly race and sex can't be the only two that we ought to be concerned about.
On the other hand, it seems like the "hierarchical" view is fraught with similarly serious problems. Who counts, nowadays, as a "discrete, insular minority" that equal protection ought to help? Does the fact that women are a majority mean that they should not benefit from heightened scrutiny, but men should? Or, if "discrete, insular minority" is just short-hand for politically handi-capped, how do we know how politically handi-capped a group must be to qualify?
I understand that this question is rooted in Constitutional Law, but I would appreciate a response exploring what the competing views logically require, as opposed to how they have developed in our case law. Thanks!