The Revival of Interest in Justice Harlan's Flexible Due Process Balancing Approach

This Article discusses how, over the years, the Supreme Court has ignored important distinctions between the concepts of due process and equal protection. The author argues that the "new" equal protection approach, developed during the Warren era, places too heavy a burden on the government to justify classifications. The author suggests that a flexible balancing approach is appropriate for resolution of the due process clause issue, and a less intrusive, means-focused equal protection methodology is appropriate for resolution of the equality issue. The author supports Justice Harlan's belief that that the ends-oriented equal protection doctrine shifted the Court's focus of inquiry away from its proper concern, which was to inquire whether classifications were clearly and unjustifiably unrelated to legitimate governmental objectives, and suggests that a revival of interest in Justice Harlan's approach is indicated by several recent United States Supreme Court decisions.