Monday, April 30, 2012 – Essay #51 – Amendment XIV, Section 1: Equal Protection Under the Law – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Amendment XIV, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Supreme Court Justice Oliver Wendell Holmes once dismissively declared the equal protection clause to be the “usual last resort of constitutional arguments.” At the time, 1927 in the notorious case of Buck v. Bell, Holmes could not have foreseen the explosion in the use of the equal protection clause that would occur a generation later.

The Declaration of Independence had famously asserted the proposition, self-evident to the Founders, that “all Men are created equal.” But this was a metaphysical proposition in that there was to be no aristocracy by birthright, a moral one in that we are all (with allowance for the truly insane) equally imbued with free will, and a religious one in that we are all children of God. The Founders were hardly so naïve to believe that all people are physically, intellectually, and emotionally equal, never mind that they are alike. Aristotle had written in the Politics, “Democracy arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal.” Aristotle viewed this as a fatal flaw of democracy, a theme echoed in Madison’s Federalist 10. In a trenchant dissection of the instability of democracies, Madison sarcastically observed, “Theoretic politicians, who have patronized this species of government, have erroneously supposed that, by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”

Moreover, the very real presence of slavery in the great majority of the states demonstrated the limitations of the concrete application of the Declaration’s sentiments. While Thomas Jefferson, agonizing over the institution of slavery from which he personally benefitted, might write, “I tremble for my country when I reflect that God is just,” it was also the case, as the historian Forrest McDonald observed, “Few of his countrymen trembled with him.”

In practice, then, both simple human differences as well as more profound human inequalities have to be taken into account in a successful social order. Regarding the former, the law routinely discriminates by drawing lines that target some in the community for unfavorable treatment. The tax code, for example, is a mass of discriminations. As to the latter, attempts to equalize conditions that arise from the human inequalities about which Madison wrote is a prescription for totalitarian government. That is the dark side of egalitarianism and exposes the tension between equality and liberty.

Moving from a manifesto for independence to a plan for governing the Union, the Framers did not imbed either a general principle of non-discrimination or one of equality of condition in the Constitution. There are only specific limited instantiations of non-discrimination, such as the protection offered under the privileges and immunities clause of Article IV to persons coming into a state from another and under the commerce clause to out-of-staters competing with local businesses.

There is, however, no equal protection clause. That had to await the adoption of the 14th Amendment. However, as was the case with the 13th and 15th Amendments, that provision had to do solely with race discrimination and, more directly, the conditions that resulted from institutionalized slavery based on the black man’s race. The 14th Amendment was the immediate product of concern over the constitutionality of the Civil Rights Act of 1866, a law passed under the 13th Amendment. That statute was an anti-discrimination law. Since it prohibited race discrimination in various matters and did not limit itself to slavery as such or apply only in former slave states, there were doubts about the ability of the 13th Amendment to support this law. To cure that defect, a movement for another constitutional amendment, the eventual 14th, arose in Congress under the auspices of the Joint Committee on Reconstruction and the leadership of Congressman John Bingham of Ohio and Senator Jacob Howard of Michigan.

The equal protection clause was only intended to insure formal equality before the law and only regarding race discrimination. That its reach did not extend further was made clear by the Supreme Court in 1872 in the Slaughterhouse Cases, in which a claim by butchers that a Louisiana law violated, among others, their right to equal protection under the 14th Amendment was rejected almost summarily. As Justice Samuel Miller declared, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” In a companion case decided on the same day, Bradwell v. Illinois, a claim by a woman that the state’s refusal to allow women to practice law violated the 14th Amendment did not even produce an argument by her attorneys or a discussion by the Court of a violation of the equal protection clause. The singularly race-focused nature of the equal protection clause was reiterated by the Court of that era in the Civil Rights Cases and Plessy v. Ferguson.

Leaving aside a few odd cases involving unenumerated fundamental rights, it was not until the 1950s that the Supreme Court began to consider non-race-related equal protection claims, and it was not until Reed v. Reed in 1971 that a claim of unconstitutional sex discrimination was successful. In the last several decades, the Court has used the equal protection clause to strike down state laws that discriminate against various classes of aliens, illegitimate children, and homosexuals. Race, ethnicity, religion, national origin and (many) alienage classifications are considered constitutionally “suspect,” meaning that they are presumptively unconstitutional and subject to “strict judicial scrutiny.” Sex and illegitimacy are “quasi-suspect” classifications subject to “intermediate” scrutiny. In either case, the government must show greater need for such discrimination than would be required for ordinary discriminations by government, such as age, wealth, disability, or other classifications. This means effectively that racial and other such differences must not be formally recognized in laws.

The expansion of non-discrimination protection has made obsolete Justice Holmes’ comment about the futility of equal protection clause claims. The Constitution now protects more broadly against discrimination by government than was the case in the 1920s, and certainly than in the 1790s. Still, there is generally no obligation by government to eliminate inequalities that result from human nature and capabilities or from what might be called expansively the human condition. President Obama, speaking years ago at an academic gathering, bemoaned the Supreme Court’s failure to use the equal protection clause to equalize economic and social conditions of inequality, but the Court has generally avoided such judicial legislation. The only exceptions have been in matters related to access to courts, such as the right of an indigent defendant to a paid attorney.

Beyond those few cases, the justices have declined numerous invitations to turn the Constitution from one of rights against the community (a “negative” constitution) to one of rights from the community (a “positive” constitution). Human experience shows that the latter always becomes one of obligations to the community, as government grows and individual liberty shrinks. Certain justices would be happy to move in the direction of the European model to enact their ideal egalitarian world. Justice Ruth Ginsburg’s admonition to the Egyptians that they follow the South African constitution rather than the American in establishing their new system comes to mind. But the increasingly precarious economic status of the welfare state shows the wisdom of the Court in not amending the Constitution to remake the equal protection clause into a constitutional forge of egalitarianism.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

7 replies
  1. Ron
    Ron says:

    Thanks, Prof. Knipprath, very interesting discussion. What’s interesting is how the fragility of our Republic often seems to rest, not on the large points in our Constitution, but on the twisting and turning of some small points, such as this one small phrase at the end of an Amendment. In like manner, the two simple words “general welfare” in the Preamble are being used as an excuse to expand government enormously. If not for this opportunity to learn about these small, but very important, points, I would still be in the dark and meekly cave into liberal arguments because I wouldn’t have known differently.

    Reply
  2. Marc W. Stauffer
    Marc W. Stauffer says:

    As I read this amendment I have to go back to the Declaration of Independence and also look at what the Founders were fighting against and the circumstances that led them to create this amendment later.

    In my opinion, our Creator has indeed created us equal, in that we all have the ability to choose to make of ourselves what we may. My understanding of the Declarations; “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”, is that government is not to place artificial or discriminatory barriers (ie: race, economic class, social status, educational level, political view, etc…) that might keep an individual from achieving their full potential.

    Further, based on the Declaration’s, “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them” means that we all have various talents, drive, desires, etc and will rise to that level we are capable of. So in that, government has no business trying to be egalitarian (a social philosophy advocating the removal of economic inequalities among people) but must restrain itself from creating artificial environments (or laws) that favor such philosophies. History has shown us through the actions and results of the now defunct USSR and its egalitarian Socialism ideals, that this sort of philosophy will never be successful or ever “equal”.

    It is, therefore, imperative that this Amendment not be construed but interpreted through the writings, lives and historical circumstances of those that created it.

    Reply
  3. yguy
    yguy says:

    Moving from a manifesto for independence to a plan for governing the Union, the Framers did not imbed either a general principle of non-discrimination or one of equality of condition in the Constitution. There are only specific limited instantiations of non-discrimination, such as the protection offered under the privileges and immunities clause of Article IV to persons coming into a state from another and under the commerce clause to out-of-staters competing with local businesses.

    There is, however, no equal protection clause. That had to await the adoption of the 14th Amendment.

    What I’m not getting is how the equal protection clause is substantively different from the P&I clause in A4, and why someone deprived by a state of the habeas privilege, or of any of the protections in 2A-8A, wouldn’t have redress in federal court under that P&I clause.

    Reply
    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      The difference between P&I and the state-qualified Equal Protection clause of the 14th has to do with standing to be the subject of a federal court case. Under P&I one can have standing in federal court if a state denies passage or conducting business to citizens of a foreign state within the US. Under the Equal Protection clause of the A14, one can have standing in a federal court if a state court refuses standing to one of its own state citizens concerning a state law. This means the federal court then can grant standing to state citizens concerning state laws to question if the state has failed to uphold its own law. It is not; however, a grant to apply federal laws upon state actors outside of the bounds of the federal constitution.

      The federal courts have always been a venue for standing concerning federal laws BUT it has also always been that state courts can prosecute cases concerning federal laws as duly agents of the federal court not to be confused as agents of the federal government. In this, a state judge plays a dual role of a state judge and as a deputized federal judge.

      The federal BoR, on the other hand, applies to federal actors and not state actors. The 14th only accords the Equal Protection and Due Process clauses, which are English Common Law legal principles. (Back in those days, the court system was still a Common Law basis court system and had not yet co-opted into the current Case Law system.) No state ratifying convention, nor scholarly journal, news paper editorial, or the like, ever promulgated incorporating the federal BoR on the states by passage of the 14th amendment. If that was the case then the 14th amendment would have been more heavily questioned and might not have been ratified. It is not until the 1920s did the SCOTUS begin to expand the 14th to selectively apply the federal BoR to the states, and to this day has not fully applied the federal BoR in questions concerning jury selection procedures and rights.

      Reply
      • yguy
        yguy says:

        Under P&I one can have standing in federal court if a state denies passage or conducting business to citizens of a foreign state within the US.

        Why would one not have standing under that clause to demand a writ of habeas corpus from a federal court if detained by LE officers of his home state?

        The federal [sic] BoR, on the other hand, applies to federal actors and not state actors.

        So I have been assured many a time over the last five years or so. Unfortunately, the providers of that assurance who have been willing to substantiate it have not been able, and those who have presumably been able have not, to all appearances, been willing.

        Reply
        • Ralph T. Howarth, Jr.
          Ralph T. Howarth, Jr. says:

          P&I is the right of “interstate travel”. If there is no interstate travel then there is no P&I. If a citizen of a state is denied a Writ of Habeas Corpus by prolonged detention without even given opportunity to answer a judge by its own state, then it had been an internal state matter no different then any other federation or league of sovereign nations. That of course changed by the Due Process clause of the 14th amendment as the Writ of Habeas Corpus is a Due Process civil right. Now if a citizen of one state was being held in another state of the US, the home state had rights to file against the foreign state for detaining a citizen indefinitely. Such has been the case under the Law of Nations, a.k.a. International Law, for under such a pretext it is the home state’s rights that is being violated when one of its own citizens is held abroad without a cause.

          As everything in life, there is always a disparity between policy and practice. Few people read the rules they are supposed to follow, and partly because rules are so numerous and partly out of expediency of following the crowd.

          The Writ of Habeas Corpus can be a case in point here. Under the pretext of the English Common Law, such a writ is considered fundamental and a part of due process. But lob off the entire apparatus of the English Common Law, then you have space for conjecture and speculation such as we have here as if the Writ of Habeas Corpus is something of a category of its own deserving a special status aside from all other due process. If Due Process questions of state courts concerning state laws concerning subjects of the state were not the purview of the federal government until the 14th amendment, then why would the Writ of Habeas Corpus have an elevated status over all the gamut of the other due process rights in federal courts? such that the federal government can intermand in any internal state affairs all along?

          Ah, but the Writ of Habeas Corpus does have a special status by the Founders by including it in the federal constitution. That writ is so fundamental to Due Process that having or not having a federal BoR would be of no consequence if federal agents can detain citizens of any state without giving any of them a day in court. Not having a day in court is a pretext of being denied any and all rights. The Founders knew that all the reserved rights to citizens of the states would be of no avail if the federal seat could arbitrarily throw anyone in prison without even being given opportunity to answer a charge before a judge. Without that writ, then the federal BoR that came about later would be nothing but lip service.

          Reply
          • yguy
            yguy says:

            P&I is the right of “interstate travel”. If there is no interstate travel then there is no P&I.

            Clearly this is nothing like a reasonable inference from the bare text of the provision, and neither am I aware of anything else in the Constitution that lends credence to it.

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