The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application
92 Pages Posted: 5 Mar 2008 Last revised: 28 Mar 2017
Date Written: 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. Elsewhere I consider how the allegiance-for-protection contractual tradition and the history of "protection of the laws" support a duty-to-protect reading of the Clause. This article reviews how a duty-to-protect reading of the Equal Protection Clause was adopted in the Civil Rights Act of 1871 and explained at great length in the debates leading to it, and argues that the Privileges or Immunities Clause, which speaks of the rights of citizens, makes far more sense than the Equal Protection Clause as a provision forbidding second-class citizenship and civil inequality. The duty-to-protect view found a few early judicial adherents, but it was soon swamped by a generic antidiscrimination reading after Slaughterhouse. A duty-to-protect Equal Protection Clause would forbid gross misbehavior in the provision of protective services, act as an open-courts provision akin to Magna Charta paragraph 40 and related state-constitutional provisions, require that police services be supplied equally, forbid inequalities like race-based jury nullification that favor criminal or civil defendants, fill a gap in the reasoning in Roe v. Wade on the inference from fetal personhood to the requirement of protection, require that the marital rape exemption be abandoned, suggest serious constitutional troubles for our current system of prosecutorial discretion, and allow the federal government to provide law-enforcement and remedial services when states have failed to do so.
Keywords: Fourteenth Amendment, Equal Protection Clause, Textualist Semi-Originalism, Theory of Original Sinn, Duty to Protect, Civil Rights Act of 1871, Privileges or Immunities Clause, Equal Citizenship, Aliens and Citizens, Marital Rape Exemption, Prosecutorial Discretion, Right to a Remedy, Roe v. Wade
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