Madisonian Equal Protection

138 Pages Posted: 15 Oct 2018

See all articles by Brandon L. Garrett

Brandon L. Garrett

Duke University School of Law

James S. Liebman

Columbia University - Law School

Date Written: September 22, 2018

Abstract

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.

Suggested Citation

Garrett, Brandon L. and Liebman, James Steven, Madisonian Equal Protection (September 22, 2018). Columbia Law Review, Vol. 104, No. 837, 2004. Available at SSRN: https://ssrn.com/abstract=3253607

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)

HOME PAGE: http://www.brandonlgarrett.com/

James Steven Liebman

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-3423 (Phone)
212-854-7946 (Fax)

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