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The Meaning of the Equal Protection Clause

Over at the Originalism Blog, Andrew Hyman has a post discussing the meaning of the Equal Protection Clause.  While modern law treats the Clause as protecting against all unequal laws, that is not the way the language reads.  The language says no state shall deprive any person of the equal protection of the laws.  Thus, the language says there is a category called “the protection of the laws” and the Clause requires that this protection be equal.

When one looks at the traditional understanding of the protection of the laws, it turns out that it means something like the remedies that are provided to protect people’s legal rights.  For a seemingly exhaustive discussion of the evidence for this, see Chris Green’s two articles here and here.  Thus, the Clause does not protect against all unequal laws, but instead of the failure of the state to protect people’s preexisting rights.

Under this interpretation, the Equal Protection Clause was about ensuring that the law protected all persons equally.  Thus, it prohibited sheriffs in the former confederate states from looking the other way when blacks were lynched.  (One important question  that this interpretation raises, which I do not discuss here, is how equality is protected under the 14th Amendment. )

Hyman notes the modern interpretation requiring that all laws be equal and wonders where this interpretation came from.  He suggests it came from this famous speech in the Senate by Jacob Howard about the meaning of the 14th Amendment.  In the speech, Howard first notes that the Privileges or Immunities Clause protects various rights.  He then moves on to the Due Process and Equal Protection Clauses.  He writes that the last two clauses of section one of the 14th Amendment

disable a State from depriving not merely a citizen of the United States, but any person whoever he may be of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.  This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.  It prohibits the hanging of a black man for a crime for which the white man is not to be hanged.  It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. . . . Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the number of another caste, both castes being alike citizen of the United States.  (Italics added.)

Hyman offers an explanation for Howard’s language about abolishing all class legislation, suggesting that Howard did not actually say this on the Senate floor (even though it was in the notes of his speech).

Perhaps, but I have another explanation. I admit that Howard’s language is not entirely clear, but I think there is a reasonable argument for concluding that Howard is not saying the Equal Protection Clause requires that all laws be equal.  Instead, he is interpreting the Equal Protection Clause to be about remedies.

In the previous paragraphs, Howard has just said that blacks are entitled to the privileges or immunities of citizenship, and is here saying that the Equal Protection Clause requires these privileges to be enforced.  Thus, the first italicized sentence might be understood as focusing on the punishment – the remedy – rather than the right.  Similarly, the second italicized sentence speaks of a shield, suggesting a protection or shield for the rights of blacks.

This  interpretation is reinforced by the last sentence of the quoted language, which shifts to talking about citizens.  The Equal Protection Clause protects persons, whereas the Privileges or Immunities Clause protects citizens.  This last sentence suggests that Howard has been interweaving both the Privileges or Immunities Clause and the Equal Protection Clause in his discussion (with the former conferring rights on black and the latter requiring those rights to be protected).

Reader Discussion

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on November 25, 2014 at 10:58:08 am

On the meaning or purpose of the Equal Protection Clause, it is instructive to focus on *protection* primarily, with *equal* as an attribute of that protection. This approach takes one right to fundamentals, i.e., the founding principles of the country announced in the Declaration (and re-proclaimed in the Gettysurg Address). What ought the law (and thus the instruments of law-enforcement) *protect*? The life, liberty, and property of individual citizens (or "persons" practically subject to its power).

As we see in our own sorry times, government might and often does embark on numerous other actions (e.g., sending payments to individuals), in which it might *treat* persons unequally or draw class distinctions; myself, I'm still waiting on my farm subsidy and old-age pension. Such officially unequal treatment is invidious and politically debatable (if only it were debated! But that's another topic).

Yet such actions would not be an *urgently* fundamental crisis, as the denial of protection of life, liberty, and property would be. If government's neglect, or worse, active abuse, of individual rights were broad, pervasive, and consistent, it would be time for the people to change its form of government (see Declaration of Independence). If such neglect or abuse were directed at a particular class of persons in the body of citizens, then it's time to invoke the Fourteenth Amendment and demand that government instead protect *equally* - not merely guard the life, liberty, and property of *some* (typically, the politically influential).

The historical record of the Fourteenth-Amendment framers shows that such protection and such equality was *precisely* was the amendment (and its precedents, such as the 1866 Civil Rights Act, and its sequels, such as the Enforcement Acts of 1870-71) was about.

Focusing on "protection" would clear the interpretive fog by returning us to founding principles that urgently need vindication, on a truly *equal* basis. This approach would also do good by opening up for political debate (and *legislative* -- not judicial -- resolution) policies about how the law should or should not treat us equally in ways other than protecting life, liberty, and property.

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JQA
on November 25, 2014 at 15:22:24 pm

JQA:

Great comments and ones that will further inform my thinking.
Thanks, especially for the last paragraph.

gabe

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gabe
on November 27, 2014 at 10:10:25 am

In January of 1867, which was early in the ratification period for the 14th Amendment, the US Supreme Court said this:

"The theory upon which our political institutions rest is, that all men have certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions are alike open to everyone, and that in the protection of these rights all are equal before the law."

So, the word protection need not be limited to protection of life, liberty, and properly, but an also extend p happiness. Here is the draft of the 14th Amendment that was considered by Congress:

"Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states; and to all persons in the several states equal protection in the rights of life, liberty, and property."

That draft limited protection to the rights of life, liberty, and property. But then Congress removed that limitation.

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Andrew Hyman
on November 27, 2014 at 11:05:31 am

But there can be any number of reasons why the cited draft was dropped / changed / modified.
If one looks at current Sect 5 of the Amendment, one could argue that it is a cleaner (textually) statement of Congress's powers under this Amendment and current Section 5 also provides cover for other Congressional action under sections 2-4. Perhaps, in the textual cleanup, it was thought that there was also no need for a *happiness* protection - sort of like not having a need for a *reserved powers* clause - we know how that worked out!

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gabe
on November 27, 2014 at 12:23:47 pm

You may be right, Gabe, about the ambiguous reasons for modifying the first draft. But still, the excerpt I gave from the Supreme Court case pretty clearly shows that "protection" applied not just to life, liberty, and property but also to happiness.

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Andrew Hyman
on November 27, 2014 at 13:15:46 pm

You may very well be correct.
I suspect that my concern is that given our inability to *divine* intent we are once again forced to rely upon the judgment of the Black Robes and I find that somewhat disquieting.

Happy Thanksgiving!

Now back to football - never any arguments about that (Oops, there probably are).

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gabe
on November 27, 2014 at 13:28:23 pm

Happy Thanksgiving to you too!

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Andrew Hyman
on December 02, 2014 at 06:00:54 am

[…] Read more at Library of Law and Liberty […]

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The Meaning of the Equal Protection Clause by Mike Rappaport – The Absurd Report

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