Equal protection as inclusive political participation and judicial review

We propose a new approach to judicial review of equal protection, one that offers vulnerable minorities more inclusivity than the prevailing American doctrine of suspect classifications. Building on Dr. Drymiotou’s original theory of the Right to Equal Democratic Belonging in a Democratic Society, we explain that her concept of institutionalized political disadvantage has two distinct functions in the analysis of equal protection cases. First it provides a criterion for analysis of the scope of the right to equal belonging. A finding of institutionalized political disadvantage would establish a prima facie violation of this right and compel judges to ask if the restriction of the right is justified in a democratic society. At this justification stage, the second function of the criterion shifts the judicial lens to the political institution, responsible for the prima facie violation. This function would call judges for considering the representation and participation of the vulnerable minority in the relevant political institution. The greater the disadvantage of the vulnerable minority in the political institution, the more rigorous judicial review should be.