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The Substantive Role of Congress Under the Equal Protection Clause

42 S.U.L. Rev. 79 (2014)

64 Pages Posted: 24 Jul 2014 Last revised: 24 Nov 2016

Andrew Hyman

The Institute for Intermediate Study

Date Written: February 7, 2015

Abstract

The authors of the Fourteenth Amendment deliberately wrote that no state can deny the equal protection “of the laws” rather than “of its laws.” This may seem nowadays like a small difference, but it was important in that era, because it meant that the word “laws” includes both state and federal laws. Therefore Congress has a substantive role under this clause that applies against the states. This meaning undercuts U.S. Supreme Court cases like City of Boerne v. Flores, 521 U.S. 507 (1997) which have largely shut Congress out. The emphasis here is on the original meaning of the Equal Protection Clause, and especially on the public understanding of its text when it was enacted. Had the Equal Protection Clause said “of its laws” rather than “of the laws” then the clause would have been directed only to application or enforcement of laws, rather than their content.

Keywords: Constitution, Fourteenth Amendment, Equal Protection

JEL Classification: K00, K19, K39

Suggested Citation

Hyman, Andrew, The Substantive Role of Congress Under the Equal Protection Clause (February 7, 2015). 42 S.U.L. Rev. 79 (2014). Available at SSRN: https://ssrn.com/abstract=2468984 or http://dx.doi.org/10.2139/ssrn.2468984

Andrew Hyman (Contact Author)

The Institute for Intermediate Study ( email )

69 Village Avenue
Dedham, MA 02026
United States
617-320-1161 (Phone)

HOME PAGE: http://www.tifis.org

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