Andrew Hyman (The Institute for Intermediate Study) has posted The Substantive Role of Congress Under the Equal Protection Clause on SSRN. Here is the abstract:
The authors of the Fourteenth Amendment deliberately wrote that no state may 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. Hence Congress has a substantive role under this clause that applies against the states. This meaning conflicts with recent 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.
Posted at 6:45 AM