Textualism and the Fourteenth Amendment
86 Pages Posted: 24 May 2017 Last revised: 18 Apr 2018
Date Written: May 23, 2017
Modern Fourteenth Amendment doctrine is difficult to square with constitutional text. The text of the Equal Protection Clause, for example, makes no distinction between racial classifications and other discriminatory practices; it requires equal protection of the laws for every “person” within a state’s jurisdiction. Nor does the text require equal treatment or equal rights; it requires equality only in the “protection of the laws.” Yet the Supreme Court assumes that the Equal Protection Clause is implicated whenever a state treats people differently—without pausing to ask whether the state has withheld the equal “protection of the laws.” And the Court has created a textually unsupportable distinction between racial discrimination, which it subjects to “strict scrutiny,” and other discriminatory practices that receive “rational basis review.”
Yet textualism has been enjoying a resurgence in both constitutional and statutory interpretation. This resurgence raises two questions for the Court’s equality doctrines. The first is whether those who embrace textualism must reject the Court’s equality jurisprudence as textually illegitimate. The second is whether those who embrace the Supreme Court’s landmark equality pronouncements must reject textualism as incompatible with those rulings. The answer to both questions is no. Almost all of the Supreme Court’s canonical racial-equality decisions have a firm textual foundation in congressional civil rights legislation—a fact that the Supreme Court has all but ignored by insisting on grounding its equality pronouncements exclusively in the Equal Protection Clause. And Congress enacted most of these civil rights statutes before the Supreme Court invoked the Equal Protection Clause to declare a discriminatory practice unconstitutional. So these civil rights statutes can and should be used to supply textual support for the Court’s decisions and doctrines, especially in cases where the Equal Protection Clause and other constitutional provisions are textually ill suited for the task.
Keywords: textualism, fourteenth amendment, equal protection, state action, rational basis, equality, race, sex, discrimination, civil rights, legislation, Congress, citizenship, necessary and proper, jury service, segregation, affirmative action, voting, Strauder, Plessy, Loving, Brown, Bakke, Batson
JEL Classification: K00, K1, K3, K10, K19, K30, K39
Suggested Citation: Suggested Citation