Equality and Protection: The Forgotten Meaning of the Fourteenth Amendment

Abstract

At the heart of the Fourteenth Amendment’s Equal Protection Clause are two fundamental principles: equality and protection.  Tragically, the Supreme Court has read one of these two principles—protection—out of our foundational charter.  While the justices repeatedly invoke the textual promise of equal protection, their precedent turns a blind eye to the constitutional command of protection and the idea that, in return for allegiance, the government owes its citizenry protection.  Until the Supreme Court takes seriously the right to protection embedded in the Fourteenth Amendment, its jurisprudence will continue to be deeply flawed.

As the text and history laid out in this Article demonstrate, the Fourteenth Amendment wrote the duty of protection into the Constitution, imposing on states an affirmative constitutional obligation to protect their people and forbidding all forms of unequal protection, whether due to heavy-handed discrimination or state neglect.  And protection was a broad concept, reflecting the idea that the government has a wide array of affirmative duties that it owes to its citizenry.  States had to protect the people from violence and other legal wrongs; provide access to courts; protect rights essential to life, liberty, property, and happiness; and provide goods and services, such as education, on an equal basis. We cannot hope to recover the true meaning of the guarantee of the equal protection of the laws without taking seriously the broad concept of protection.