Madisonian Equal Protection
138 Pages Posted: 15 Oct 2018
Date Written: September 22, 2018
James Madison is considered the "Father of the Constitution," but his progeny disappointed him. It had no effective defense against self-government's "mortal disease"--the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim the deep conception of equal protection at the core of his constitutional aspirations. At the Convention, Madison passionately advocated a radicalstructural approach to equal protection under which the "extended republic's" broadly focused legislature would have monitored local laws and vetoed those that were parochial and "unjust." Rejecting this proposal to structure equal protection into the "interior" operation of government, the Framers instead adopted "exterior" admonitions against state ex post facto laws, impairment of contracts, and the like. Expanding this strategy, the Fourteenth Amendment admonished states againstall denials of "the equal protection of the laws." Exactly as Madison predicted, however, protection of local minorities cannot be entrusted to "dim and doubtful" words enforced after the fact by courts that are inaccessibleto minorities and too distantfrom the people at large to have the knowledge and confidence to resist powerful local majorities. This is particularly so of late, as the courts have placed vast spheres of activity off limits to theextended republic and denied it the power to enlist state officials in implementing national policy. By rediscovering Madison's neglected thinking on equal protection, and his elaborate design for a constitution that was never enacted, this Article sheds new light on seemingly intractable problems of federalism and equal protection and paves the way for a modern revival of Madisonian Equal Protection.
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