I'm grateful to Professor Chris Green for responding to my recent blog post about how the Fourteenth Amendment provided a constitutional basis for the Civil Rights Act of 1866.
Professor Green prefaces his textual objections with this statement:
Hyman…focuses on the fact that Congress has enforced antidiscrimination requirements on the (rest of the) federal government. For states to give inhabitants the "equal protection of" such federal laws means, not simply to obey such laws, but to give analogous antidiscrimination benefits to the benefits Congress requires the federal government to give.
I am not really sure what an "antidiscrimination benefit" is, and therefore am unsure that I correctly understand Prof. Green's point. My earlier blog post assumed that the Equal Protection Clause (EPC) requires states to furnish "the equality of protection of the laws," including federal laws. That assumption does not mean a state must provide any benefits whatsoever; rather, it means that a state must fundamentally be just as evenhanded as Congress in providing whatever benefits (or other protection) the state chooses to provide.
My recent blog post did not address whether the EPC affirmatively requires a state to provide any level of protection to its populace, and did not suggest that a state must provide any benefits merely because Congress provides analogous benefits. Current jurisprudence holds that no level of protection is required, so long as a state satisfies the equality requirement. My point was (and is) that the EPC forbids states to deny anyone the equality of protection of its own laws, and additionally forbids states to deny anyone the equality of protection of federal laws. The latter requirement is the one that is almost always overlooked, it goes beyond a mere requirement that states obey federal laws, and yet it does not affirmatively require a state to provide any benefits (or other protection) that the state would prefer not to provide.
To the extent that the word "laws" in the EPC includes federal laws, Professor Green apparently understands the EPC as merely ensuring that a state will comply with federal laws that are already within the power of Congress to make. But as far as I can tell, such an EPC requirement would be superfluous if the Supremacy Clause is respected; also, quite apart from the Supremacy Clause, such an EPC requirement would be superfluous with respect to federal laws that are already enforceable against the states via other aspects of the Fourteenth Amendment (e.g. the Privileges or Immunities Clause, the section five enforcement provision, and/or the "of its laws" component of the EPC). I do not think that the choice of the word "the" instead of "its" was so pointless. Instead, it laid down a complete constitutional basis for the Civil Rights Act of 1866, and for later federal legislation essential to promoting equality in the states.
Regarding whether the phrase "of the laws" includes the laws of other states, consider this: every time that Bingham or Edmunds addressed the meaning of the words "of the laws" prior to ratification, they pointedly omitted the laws of other states. Likewise, the notion that the 14th Amendment might apply the laws of one state to another state was unpopular in Congress, as can easily be seen from the debate about the first draft of the amendment that Congress considered. From a purely textual point of view, if a state legislature refers (e.g. in a ratification resolution) to "the laws" then the natural inference must be that "the laws" means no more than the laws of that state plus federal laws; after all, enactments by other states or by other countries cannot have the force of law except in those other states and other countries.
Posted at 11:06 PM