Rebuttal to Professor Green

I’m grateful to Chris Green for responding to my criticism of his Equal Protection Clause theory.  His comments clarify his theory, and help to focus this discussion.  Incidentally, my previous blog post on this subject was directed only at pre-enactment history, because (1) the post-enactment history is much less important from an originalist point of view, and (2) the discussion is more manageable if we avoid post-enactment stuff.  So, I’ll continue that way now (i. e. without addressing Chris’s article on post-enactment history).  Except that I do want to say a few words about one court case from 1886.

Chris says that his law review articles have presented, at “stupefying length”, arguments against the Court’s statement in Yick Wo v. Hopkins (1886) that “the equal protection of the laws is a pledge of the protection of equal laws.”  Judges and scholars have long understood that this sentence in Yick Wo, “makes it abundantly clear that the quality of legislation as well as the quality of administration comes within the purview of the clause”  (as Joseph Tussman once put it).  And yet Chris has made it abundantly clear that he agrees there is an EP Clause requirement that legislation be up to snuff  (Chris says the EP Clause provides “both literal protection from violence and the enforcement of the laws”).  Therefore, it seems like Chris is in substantial agreement with the sentence in Yick Wo that he paradoxically denounces as “adjectival migration”, in that Chris agrees the EP Clause affects the quality of state legislation.  There isn’t anything in that quote from Yick Wo (putting aside the rest of that decision) that says “protection” includes protection of a right to benefits, or that “protection” involves more than remedial and law-enforcement functions, so I don’t see why Chris criticizes the quoted Yick Wo sentence on those grounds.  Anyway, I’d like to get back now to the constitutional text and pre-enactment history, leaving Yick Wo aside.

I agree with Chris that neither the word “equal” nor the word “protection” in the Equal Protection (EP) Clause is superfluous.  But I do disagree with him about the scope of protection.  He believes (1) that the scope of protection is not limited by the adjective “equal” whereas I do; and (2) that the scope of protection is limited to protection from violence and from non-enforcement of laws, whereas I don’t.  On point (1), Chris acknowledges some doubt, and I hope that perhaps I may have contributed to that doubt a little bit.  Anyway, given that doubt, I will focus now on point (2) only.

The meaning of the EP Clause would change dramatically if the word “protection” were removed. If the clause instead forbade denial of “the equality of the laws” then that would leave out equal enforcement.  If the clause forbade denial of “the equal enforcement of the laws” then that would leave out equality of the laws themselves.  So I regard the “protection” requirement as very important, as Chris does.

It may also be that the word “protection” was chosen partly to help distinguish voting rights from civil rights.  After all, voting rights of women and racial minorities are covered by later additions to the Constitution, whereas Section 2 of the Fourteenth Amendment specifically contemplates inequality of voting rights.  And I have already quoted Henry Raymond as making a distinction between civil rights (covered) versus political rights (not covered).

Chris’s position is that some equality in civil rights is not covered by the EP clause, such as the right to equal education, other equal benefits, and equal justice generally.  I continue to believe that relying upon other clauses to defend these things overstretches the other clauses and underestimates the EP Clause.

I have already acknowledged in my initial blog post responding to Chris that government has a duty to protect the governed.  In other words, the allegiance-for-protection tradition is a real duty.  I just don’t see it in the EP Clause.  If the words “within its jurisdiction” raise a red flag in this regard, then the red flag is very tiny.  Those three quoted words may very naturally have been employed to clarify that the EP Clause does not authorize a state to act outside its own borders to protect one of its own citizens (or anyone else), and/ or that people visiting or transiting within the state are fully and equally covered by the clause.  I don’t see this allegiance-for-protection tradition as helping to define “protection” in the Fourteenth Amendment.  And even if it does, I don’t see why that protection (owed by the state in return for allegiance) would not include protection of people’s equal rights generally.  The Constitution elsewhere speaks of “protecting” non-persons (e.g.  protecting states and protecting the Constitution itself), so there’s no reason to think the EP Clause refers to direct protection of persons rather than protection of their civil rights.  I view the latter as a “protection-based interpretation” even though Chris does not.

As an aside, I do not object to the general notion that we need to find some limiting principles to understand the EP Clause.  The clause cannot plausibly give judges free reign to decide, for example, that a shoplifter must be treated equally to an arsonist.  It’s just that I don’t think Chris has identified the correct limiting principles.  Given the prominent citation of the Declaration of Independence by Thaddeus Stevens and others, I suspect that the EP Clause probably targets only discrimination based on characteristics that are already determined when a person is born, or pretextual reference to such characteristics (e.g. “We’re not discriminating against him because he’s black, only because he’s a former slave!” or “We’re not discriminating against her because two of her grandparents were Jewish, but only because of the beliefs she has chosen for herself!”).

Chris’s leading example for the use of the phrase “protection of the law” is Blackstone:

For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded.  This is what we mean properly, when we speak of protection of the law.  When, for instance….[law] will make Gaius restore the possession [of land] to Titius, and also pay him damages for the invasion.”

Here Blackstone may be referring to “protection of law” as basically remedial, i.e. to enforcement of a legal right that exists separately from the remedy.  Or he may be referring to “protection of law” wholistically as the sum total of declaratory law plus remedial law.  For the sake of argument, assume the former.  Under that assumption, I don’t see how a bare constitutional requirement of “protection of the law” would require legislation to safeguard people from violence (as Chris says it must: “both literal protection from violence and the enforcement of the laws”).  For example, if state law explicitly says that green people are always free to beat up on purple people and explicitly says that purple people have no legal right to not be beaten up, then the state law has not thusly declared any right of purple people whatsoever, nor directed such right to be observed, and hence Blackstonian protection of the law requires no method of recovering or asserting any right of purple people.  How could “protection of the law” be of any help to purple people in this instance?  I don’t see that it would be helpful, according to Blackstone, but Chris inexplicably says that  it would be helpful (i.e. the clause provides “both literal protection from violence and the enforcement of the laws”).

The EP Clause makes little sense if a state can entirely deny protection to a particular race merely by amending its statutes to explicitly exclude that race.  In other words, the “equal” protection of the laws must protect legal equality, as Henry Raymond said.

UPDATE: Modified for clarity at 7:15 PM on February 7.  Will leave as-is now. Changed “Jules Coleman” to “Joseph Tussman” at 10:16 PM on February 7.

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