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More on the Equal Protection Clause and the Federal Government

My post on the fact that the equality requirement did not apply to the federal government, which was expanding on Mike Ramsey’s post, has generated some discussion.   See these two posts on the Volokh Conspiracy by Will Baude and by Ilya Somin.

One last point.  One way that the equality requirement might apply against the federal government is through due process.  The Due Process Clause was applied against the federal government in the 5th Amendment in 1791 and against the states in the 14th Amendment in 1868.  Thus, if one can find an equality requirement in due process, one might have an equality limit on the federal government.

But the leading articles on due process claim that the 1791 Clause does not impose an equality requirement.  Chapman and McConnell in the Yale Law Journal claim that the 5th and 14th Amendments both impose the same requirement and that requirement does not establish a general equality requirement.  Ryan Williams, also in the Yale Law Journal, argues that the 14th Amendment may impose an equality requirement, but denies that the requirement exists in the 5th Amendment — and therefore it does not apply against the federal government.

Reader Discussion

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on September 23, 2013 at 16:06:53 pm

Chapman & McConnell don't fully understand the impact of their (really good) article: if, as they say, the due process clause entails a requirement to have general and prospective law, then it necessarily entails a requirement to have law free of invidious discrimination, because there is no other coherent understanding of what general law is. (Article of mine arguing as much: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203735 ---I also have some brief notes on this controversy up in the blogosphere right now on concurring opinions)

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Paul Gowder
on September 24, 2013 at 13:54:09 pm

Mike:

Read you piece on Colorblind Constitution. Rather enlightening and leads me to make an apology for a past comment about lawyers not considering history enough. Clearly you do so in this essay.

Agree with you with respect to the Freedmens laws. Although one or two instances seem a bit of a stretch. I often wonder, if, in our efforts to prove a thesis, that we do not try too hard to establish the "rightness" of our arguments by attempting to excuse conflicting comments or actions by someone who is otherwise "on our side." Why can it not be that someone simply acted in a manner that is inconsistent with their stated position, either out of a sense of compassion, political advantage, etc and leave it at that. Of course there are problems with this approach, but in some ways it may be a lesser problem than trying to interpret positive law (and more importantly more basic tenets) via this "smeared lense" of inconsistency.
I think sometimes it is better to simply accept that humans may, at times, defy prediction.

Anyway. great piece and really helped my thinking on this issue.

take care
gabe

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gabe
on September 24, 2013 at 17:08:29 pm

Thanks Gabe.

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Mike Rappaport
on September 26, 2013 at 11:13:00 am

Professor Gowder,

I think what makes a law "general" so as to satisfy the "general" requirement is that the individual identify of the persons affected is unknown to the legislator in advance--unpredictable application. The very argument for the rule of law is that law is blind to the particular individual, because, so it's been alleged, it is consideration of particular individuals that gives rise to passions that corrupt even the best of men; hence the alleged superiority of the rule of law to the rule of the wise judge (whether Latina or otherwise). A law saying that all con-law professors in the USA whose surname begins with the letter GOW shall forfeit their first-born child would be such a law--akin to a bill of attainder. A law saying that all teachers shall do so, would not be deficient in that respect.

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David Upham

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