The Equal Protection Component of Legislative Generality

Evan C. Zoldan* 

The goal of achieving equality under law is deeply rooted in American philosophical traditions and constitutional doctrine. And although there is no universally accepted definition of equality, some applications of the principle are uncontroversial; most conceptions of equality bristle at the notion of particularized legislative treatment of named individuals without adequate justification.

Consider the following example: a well-connected man, a high-ranking government official no less, dies. He truly is part of the one percent, worth $50 million at his death. In its next Continuing Appropriations Act, between provisions about public health and veterans, Congress inserts a section transferring nearly $200,000 to the deceased millionaire‘s widow. The public owes no preexisting legal or financial obligation to the man or his widow the transfer is neither a pension nor a life insurance payout. Ra-
ther, it is a mere gratuity. But, little attention is paid to this provision and it is passed by both chambers of Congress and signed into law by the President. A gratuitous transfer of this kind, of public wealth to a named individual, singles out a particular person for a special benefit that is not available to the population generally. This statute offends widely held conceptions of equality because it accords the official‘s widow a benefit without reference to any service that she provided to the community—and what is perhaps worse—simply because of her family connections.

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*Associate Professor, University of Toledo College of Law. My thanks for the invaluable comments and suggestions of Akhil Reed Amar, Jack M. Balkin, Victoria F. Nourse, Richard Briffault, Peter D. Enrich, Eric Berger, Gregory M. Gilchrist, Ganesh Sitaraman, Rebecca E. Zietlow, and Kirsten Matoy Carlson. I am grateful for the comments from participants in the Yale/Stanford/Harvard Junior Faculty Forum, the Legislation Roundtable at Cardozo Law School, the Association of American Law Schools New Voices in Legislation Workshop, Loyola University Chicago Constitutional Law Colloquium, Central States Law Schools Association Scholarship Conference, Northeastern University‘s Legal Scholarship 4.0 Workshop, and the faculty of Wayne State University Law School. Thanks also to the University of Toledo College of Law for its support for this project.