Elsewhere Garrett and Liebman have recounted that though James Madison is considered "the Father of the Constitution," his progeny disappointed him because it was defenseless against self-government's "mortal disease "-the oppression of minorities by local majorities-because the Framers rejected the radical structural approach to equal protection that Madison proposed. Nor did the framers of the Fourteenth Amendment's Equal Protection Clause and federal courts enforcing it adopt a solution Madison would have considered "effectual." This Article explores recent subconstitutional innovations in governance and public administration that may finally bring the nation within reach of the constitutional polity Madison envisioned To explain how Madisonian governance mechanisms can solve the problem of equal protection, the authors turn to the thinking of another homegrown practical philosopher who was ahead of his time, John Dewey. Dewey sets out what he calls an "experimentalist" problem-solving method for curing the equal protection ills Madison diagnosed In two core civil rights contexts, public school reform and workplace discrimination, solutions both Madisonian and Deweyan already point the way to an "experimentalist equal protection" regime that remains well within our reach. Such experimentalism may not only open our rigid, tepidly enforced equal protection doctrine to an evolving, problem-solving approach, but in the process transform democratic institutions and community.
Brandon L. Garrett & James S. Liebman, Experimentalist Equal Protection, 22 Yale Law & Policy Review 261-327 (2004)