The Original Sense of the (Equal) Protection Clause: Pre-Enactment History
76 Pages Posted: 4 Mar 2008 Last revised: 18 Jan 2009
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.
Keywords: Fourteenth Amendment, Equal Protection Clause, Textualist Semi-Originalism, Theory of Original Sinn, Duty to Protect
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