The Equal Protection Clause Versus What SCOTUS Says It Means

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I’m pleased to say that I have an article forthcoming in the Southern University Law Review.   The article is titled “The Substantive Role of Congress Under the Equal Protection Clause,” and it is already online at this link to SSRN.   Here is the abstract:

The authors of the Fourteenth Amendment deliberately wrote that no state can deny the equal protection “of the laws” rather than “of its laws.” This may seem nowadays like a small difference, but it was important in that era, because it meant that the word “laws” includes both state and federal laws. Therefore Congress has a substantive role under this clause that applies against the states. This meaning undercuts U.S. Supreme Court cases like City of Boerne v. Flores, 521 U.S. 507 (1997) which have largely shut Congress out. The emphasis here is on the original meaning of the Equal Protection Clause, and especially on the public understanding of its text when it was enacted. Had the Equal Protection Clause said “of its laws” rather than “of the laws” then the clause would have been directed only to application or enforcement of laws, rather than their content.

As usual, we have a clause that has been distorted by the judiciary to give itself more power, in this case at the expense of Congress.  This is why I love studying physics: the law is the law is the law, and it doesn’t matter what Anthony Kennedy says.

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