RUBIN_BOOK
11/28/2006 2:24 PM
1879
ESSAY
TAKING ITS PROPER PLACE IN THE CONSTITUTIONAL
CANON: BOLLING v. SHARPE, KOREMATSU, AND THE
EQUAL PROTECTION COMPONENT OF FIFTH
AMENDMENT DUE PROCESS
Peter J. Rubin∗
INTRODUCTION
HERE has been some scholarly attention paid of late to the
constitutional canon, and to what finds its way in and why.1
The justly acclaimed but often criticized decision in Bolling v.
Sharpe2 provides a most interesting lens through which to examine
that question. Bolling is, of course, firmly ensconced in the consti-
tutional canon. Decided the same day as Brown v. Board of Educa-
tion,3 it was a landmark decision in which the Supreme Court
struck down racial segregation in the District of Columbia public
schools. It is nothing less than the received wisdom in American
constitutional law that in Bolling v. Sharpe the Supreme Court cut
from whole cloth the doctrine that the Due Process Clause of the
Fifth Amendment has an “equal protection component” that ren-
ders principles of equal protection applicable to the federal gov-
ernment. This doctrine is a significant feature of American consti-
tutional law, and one that provides a critical part of the framework
T
∗ Professor of Law, Georgetown University. An earlier version of this Essay was
presented at the Georgetown University Law Center conference, Bolling v. Sharpe at
50: Desegregation in the District of Columbia: Past, Present and Future. I am grateful
to Joshua Carpenter, Georgetown University, J.D. 2006, and Gayle Horwitz, George-
town University, J.D. 2005, for their excellent research assistance.
1 See generally, e.g., J.M. Balkin & Sanford Levinson, The Canons of Constitutional
Law, 111 Harv. L. Rev. 963 (1998); David Fontana, A Case for the Twenty-First Cen-
tury Constitutional Canon: Schneiderman v. United States, 35 Conn. L. Rev. 35 (2002);
Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17 Const. Comment.
295 (2000); William J. Rich, Taking “Privileges or Immunities” Seriously: A Call to