The Vulnerable Subject and the Responsive State

Equal protection law under the United States Constitution requires that in order to be treated equally, individuals must be treated the same. This sameness-of-treatment version of equality ignores contexts, as well as differences in circumstances and abilities on the part of those whose treatment is compared. Most perplexing is the way in which the equal protection doctrine ignores existing inequalities of circumstances and presumes an equivalence of position and possibilities. Such a narrow approach to equality cannot be employed to combat the growing inequality in wealth, position, and power that we have experienced in the United States over the past few decades.