A Response to Professor Chris Green's "The Original Sense of the (Equal) Protection Clause: Pre-Enactment History"

I disagree with some aspects of the equal protection jurisprudence of the U.S. Supreme Court, but that’s a long story.  This brief blog post is merely to explain why the overhaul proposed  by Professor Chris Green is not the way to go.  I hear that a fun way to waste time on the Internet is to take an ordinary English sentence and translate it successively into several different languages using Google Translate, and then finally back into English.  A lot gets lost in the translation.  Professor Green’s scholarly work is much better than a Google Translate of the Equal Protection (EP) Clause, but it’s not quite Berlitz either.

The EP Clause is located in the first section of the Fourteenth Amendment, and it was adopted in the wake of the Civil War.  It says that no state shall, “deny to any person within its jurisdiction the equal protection of the laws.” Essentially, Professor Green’s theory is that the EP Clause forbids each state from denying to any person within its jurisdiction full legal protection against injury.

The change that Professor Green proposes is vast.  Congress and the Supreme Court would be able to strike down not only unequal state statutes that withhold protection from some types of people, but would also be able to strike down and even replace nondiscriminatory (i.e. equal) state statutes, if those equal state statutes do not — in the opinion of Congress or the Supreme Court — fully protect people from injury.  That includes injury inflicted by both private parties as well as injury by state criminal laws.

Professor Green would in one sense narrow federal power under this clause, even while immensely expanding it overall.  Federal power would be narrowed in the sense that the feds could no longer use the EP Clause to strike down unequal state laws that simply confer benefits (such as education), because Professor Green doesn’t think those statutes involve “protection.” Instead, in Green’s view, the EP Clause would only target state laws that fail to guard people from violent injury and the like.  To make up the difference, Professor Green would supercharge other parts of the Fourteenth Amendment, which raises a whole other set of issues that I won’t get into here.

There are two basic problems with Professor Green’s analysis of the constitutional text.  First, he underestimates the word “equal” in the EP Clause, as if it is merely one of many qualities that a state’s protective laws must satisfy in order to comply with this Clause.  Second, he adopts an unjustifiably narrow interpretation of the word “protection” so that it does not refer to general protection against injustice (e.g. racial discrimination), but instead only refers to protection against violent injury and the like.

Let’s dig a little deeper.  The constitutional text requires “equal protection”.  If protection is equal but otherwise inadequate, then other clauses of the Constitution may be relevant, but the EP Clause isn’t.  Had the framers wanted this EP Clause to require more than “equal” protection, they could have easily said so, and they obviously knew how.  For example, the Republican Platform of 1864 said: “the Government owes to all men employed in its armies, without regard to distinction of color, the full protection of the laws of war.” This required not just equal protection, but full protection.  And the 1864 platform was no fluke.  The Civil Rights Act of 1866 also required the “full and equal  benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens….”

Instead of the word “equal”, Professor Green essentially reads into the EP Clause the word “full,” which is certainly not synonymous, and was deliberately avoided by the framers.  To be sure, Professor Green does not explicitly say that he wants to replace “equal” with “full,” but that is how he reads the EP Clause; equal protection is not enough in his view, and the protection must also be adequate in all other respects.  He considers the word “equal” to be on par with a mere parenthetical, according to the title of his article, but of course this word is not parenthetical in the actual law adopted and preserved in the Constitution.  True, government has a duty to fully protect the governed, but not every principle of good government is located in the Fourteenth Amendment, for the very simple reason that the framers did not want Congress and the federal courts to take over all the important functions of state government.

Now consider the word “protection” in the EP Clause.  Professor Green says that it does not refer to benefits like education or other services offered by the public or private sectors.  Actually, though, it was not unusual in the nineteenth century to hear about protection of rights, as opposed to mere protection of persons and property.  For example, the founder and publisher of the New York Times, Henry Raymond, was a New York congressman from 1865 to 1867, and he explained as follows:

“I have no doubt at all that the will and purpose of this nation to-day is, and has been ever since the war closed, that there shall be in the Constitution some provision more effective than any yet existing for an equality of rights of all men in this country, and for their protection in the enjoyment of them; for an absolute and immediate equality of civil rights, and for an equality of political rights just as soon as the other and more pressing necessities of the nation will permit.”

This congressional speech by Raymond was covered in the newspaper he founded, and was typical during that era.  As in the speech by Raymond, the word “protection” often referred generally to protection of rights, and not merely to direct protection of persons and property.

The draft version of the EP Clause sought to secure “equal protection in the rights of life, liberty, and property.”  But in the final version, the qualifiers disappeared, and this became “equal protection of the laws.” Professor Green seeks to insert qualifiers that are even more limiting than the ones which were removed.

The Civil Rights Act of 1866 sought “protection” not merely of people’s safety and property, but rather “protection to all persons in their constitutional rights of equality before the law….”  This desired protection was obviously directed at protecting rights, and only protected persons and property indirectly by protecting those rights.  And there is no compelling reason to think that the Equal Protection Clause took a more limited approach to “protection” than the Civil Rights Act did.  I like Professor Green, but respectfully disagree with his analysis of the EP Clause.

UPDATE (February 3, 5 PM EDT): I made a few minor tweaks for clarity, and will now leave it as-is.