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).