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The Original Sense of the (Equal) Protection Clause: Pre-Enactment History

Christopher R. Green

University of Mississippi - School of Law

George Mason University Civil Rights Law Journal (CRLJ), Vol. 19, p. 1, 2008

The Supreme Court has long understood the Equal Protection Clause - "[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws" - as a generic antidiscrimination provision. This article challenges that interpretation. Applying a constitutional theory that takes the sense historically expressed by constitutional language as interpretively binding, but not that language's historically-understood or historically-intended referent, I argue that the Clause instead requires States to supply the "protection of the laws" - and supply it equally - to everyone subject to the State's decrees. This article reviews evidence from the 1866 Congressional debates, explains how the language of the Clause in its historical setting expresses the allegiance-for-protection contractual tradition, documents the extensive tradition of using "protection of the laws" to refer to the remedial and law-enforcement functions of government, and criticizes the textual foundation of the traditional view of the Clause. Elsewhere I consider subsequent interpretations of the Clause and explain why a duty-to-protect Equal Protection Clause would have great significance today.

Number of Pages in PDF File: 76

Keywords: Fourteenth Amendment, Equal Protection Clause, Textualist Semi-Originalism, Theory of Original Sinn, Duty to Protect

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Date posted: March 4, 2008 ; Last revised: January 18, 2009

Suggested Citation

Green, Christopher R., The Original Sense of the (Equal) Protection Clause: Pre-Enactment History. George Mason University Civil Rights Law Journal (CRLJ), Vol. 19, p. 1, 2008. Available at SSRN: http://ssrn.com/abstract=1100105

Contact Information

Christopher R. Green (Contact Author)
University of Mississippi - School of Law ( email )
Lamar Law Center
P.O. Box 1848
University, MS 38677
United States
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