Professor John Tehranian
Southwestern Law School
One of the bedrock principles of American constitutional jurisprudence is its commitment to provide heightened scrutiny to laws that distinguish amongst us on the basis of certain immutable traits. But race—the very trait that has historically received the most searching form of scrutiny under modern equal-protection doctrine—is far more fluid than the law has traditionally recognized. This Paper examines the mutability of race—both through its social and legal construction—and the resulting impact of that fluidity on the theoretical underpinnings of constitutional jurisprudence. Specifically, using examples such as the debates around Rachel Dolezal and Elizabeth Warren’s heritage, the United States Census Bureau’s recent proposal to create a new race (MENA) for certain individuals previously classified as White, legal controversies around eligibility requirements for affirmative action policies, and discrimination claims involving language use and personal appearance, this Paper argues that modern understandings about the mutability of race can inform interpretations of the scope of protections afforded under the United States Constitution’s Fourteenth Amendment and its application to broader notions of identity, whether fixed or chosen. In short, the Paper calls for a more robust understanding of the Fourteenth Amendment that moves beyond the myopic and ill-conceived fetishization of immutability that has problematically guided American equal-protection jurisprudence over the past half-century.
John Tehranian is the Paul W. Wildman Chair and Professor of Law at Southwestern Law School in Los Angeles, California. He has previously served as a tenured professor at the University of Utah. A graduate of Harvard University and Yale Law School, Professor Tehranian’s scholarship focuses on the interface between law and culture. Professor Tehranian is the author of two books, Whitewashed: America’s Invisible Middle-Eastern Minority (New York University Press, 2009) and Infringement Nation: Copyright 2.0 and You (Oxford University Press, 2011), and dozens of articles, including those published in the Yale Law Journal, Northwestern University Law Review, Harvard Journal of Law & Gender, Berkeley Technology Law Journal, Iowa Law Review, George Washington Law Review, and the Chronicle of Higher Education. Professor Tehranian’s work has been widely cited, including in testimony before Congress, numerous courts decisions and in briefs before the U.S. Supreme Court in several landmark cases.