Short of natural law or an unwritten constitution, I have heard no principled explanation to justify the full sweep of judicially-imposed limits on majoritarian legislation under the written Constitution. The purpose of this Article is to argue that explanations of Bill of Rights limitations in the United States Constitution may be informed or illuminated by external sources of law that include emerging human rights norms. While ambitious, this thesis may be sustained by examining specific "windows" of various open-ended provisions of the Constitution. I focus here on the fifth and fourteenth amendments, and more particularly on the due process and equal protection standards of scrutiny of legislation and the underlying principles for scrutinizing both national and state action. Human rights norms are useful as positive sources for appraising those levels of scrutiny.
Christenson, Gordon A., "Using Human Rights Law to Inform Due Process and Equal Protection Analyses" (1983). Faculty Articles and Other Publications. 164.