Equality and Protection: The Forgotten Meaning of the Fourteenth Amendment

102 Denver Law Review, forthcoming 2025.

43 Pages Posted: 24 Feb 2025 Last revised: 10 Feb 2025

See all articles by David Gans

David Gans

Constitutional Accountability Center

Date Written: February 10, 2025

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.

Suggested Citation

Gans, David, Equality and Protection: The Forgotten Meaning of the Fourteenth Amendment (February 10, 2025). 102 Denver Law Review, forthcoming 2025., Available at SSRN: https://ssrn.com/abstract=5131589 or http://dx.doi.org/10.2139/ssrn.5131589

David Gans (Contact Author)

Constitutional Accountability Center ( email )

1200 18th Street
Suite 501
Washington, DC 20036
United States

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