Thanks to Mike Ramsey for pointing out Judge Easterbrook's very stimulating Scalia Lecture. I found one of the exchanges particularly interesting, between about 1:02:30 and 1:08:00 on the video. In response to Charles Fried's question about sex discrimination and the Fourteenth Amendment, Easterbrook notes his agreement with David Currie's view (later echoed by John Harrison and my own work) that the Equal Protection Clause is about equality in the protection from violence, not equality in general. He also gives some very interesting background to his own opinion in NRA v. Chicago, noting that he intended to help prod the Court to reconsider the death of the Privileges or Immunities Clause in Slaughterhouse and Cruikshank, though only Justice Thomas was willing to do so in McDonald.
Also, thanks to Andrew Hyman for offering an interesting alternative view of the Equal Protection Clause (defended at greater length in his forthcoming article), which reads it as states' obligation to obey antidiscrimination requirements analogous to those Congress imposes on the rest of the federal government.
I am not sure that Hyman's view can be made to work textually. More after the jump.
Consider the text: "[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws." Hyman rightly points out George Edmunds and John Bingham's clarifications that "the equal protection of the laws" is not limited to the equal protection of state laws; it includes the equal protection of federal laws as well. Edmunds pointed out in June 1868 the misstatment in Florida's ratification, which referred to "the equal protection of its laws," rather than "the equal protection of the laws." Bingham in January 1867 looked forward to the time when the people would require "that no State shall deny to any mortal man the equal protection of the laws–not of the laws of South Carolina alone, but of the laws national and State–and above all, of that great law, the Constitution of our own country…"
What exactly does this mean? My own work surveys at great length the phrase "protection of the laws" and related phrases, and finds that they mean, as Currie and Easterbrook and Harrison think, protection from violence and the right to a remedy. (See here, especially at 43-69, and here.) Breaking down such an interpretation into components, "the laws" must mean, first, a narrow irreducible core of basic natural laws against murder, theft, or assault. To repeal state laws against the murder of freedmen would violate the Equal Protection Clause, though it would mean that states were enforcing all state laws on the books. This would be so even if, as is the case outside federal territories or enclaves, there are no applicable federal laws against murder. "The laws" also, however, includes any state laws, including judge-made common law, that grant rights; rights must be coupled with remedies on this reading. But Edmunds and Bingham insist that this is still not enough; it includes federal laws too. Accordingly, state courts are obliged to enforce, as under Testa v. Katt, federal law. (Hyman overreads, I think, Bingham's comment on other states' law in the Bingham-Amendment discussion of February 1866, before the Equal Protection Clause was drafted.)
Following Edmunds and Bingham, Hyman insists that "the laws" includes federal laws such as the Civil Rights Act of 1866. What does it mean, exactly, that states must give persons within their respective jurisdictions the "equal protection of" such laws? The rule cannot be simply that Congress may now tell states that they must do just anything. The fact that the Civil Rights Act of 1866 tells states what to do does not render the Act itself constitutional, simply in virtue of a command that states must enforce federal laws; any command to enforce federal law must, of course, be limited to constitutional federal laws. Hyman instead 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 antidiscrimnation benefits to the benefits Congress requires the federal government to give.
I see two textual problems with such a view. First, I am unaware of anyone who used the word "protection" to refer to such an analogy between antidiscrimination requirements on different governments. George Edmunds referred to the Civil Rights Act of 1866 as one of the laws states were bound to enforce under the Equal Protection Clause, but in the context, he is not saying that the Equal Protection Clause made the Act constitutional, only that it required states to enforce it. Edmunds himself explained in 1872 that the Civil Rights Act of 1866, which he wanted to expand into the Civil Rights Act of 1875, was based on the Privileges or Immunities Clause. [Added: Edmunds also repeatedly explained the Equal Protection Clause in 1871 in terms of the right to a remedy and protection from violence. See here at, e.g, 232-33, 243, 245, 296.]
A second textual problem with such an "analogous requirements" reading of the word "protection" is that it makes Bingham's references to state laws incomprehensible. What does it mean for states to provide inhabitants with analogous benefits of their own laws? "Equal protection" must, on Hyman's reading, mean one thing with respect to state laws and another thing with respect to federal laws. If, however, "protection" means simply "protective enforcement," we can make sense of both state and federal laws in Bingham's parsing of the Equal Protection Clause with the same reading in both cases. States are required to enforce federal law, give remedies for state-law rights, and protect all their inhabitants from violence. To the extent that the Civil Rights Act of 1866 covered law enforcement and the right to a remedy, it was covered by the Equal Protection Clause, but to the extent that it did not–racial discrimination in land ownership, routinely denied to aliens, was one particularly clear example–it was covered only by the Privileges or Immunities Clause. Some may have associated the Civil Rights Act with the language of the Equal Protection Clause–though Hyman's evidence from the Cincinnati and Fort Wayne Daily Gazettes seems less than fully clear–those like James Wilson, Schulyler Colfax, and Lyman Trumbull consistently explained the Civil Rights Act of 1866 in terms of the privileges of citizens of the United States, and vice-versa. Their rationale was, moreover, not the tortuous one that Hyman suggests–that the right to own land was protected by the federal government, and therefore encompassed within the "analogous benefits" reading of the Equal Protection Clause, which was in turn incorporated into the enumerated-rights-only reading of the Privileges or Immunities Clause. It was that the right to own land and kindred rights of the Civil Rights Act were, simply and directly, privileges of citizens of the United States.
[Added 12/9: Hyman replies here. I am still not sure how his view is supposed to work textually. My reference to analogous antidiscrimination benefits is an attempt to restate his view in terms that could conceivably fit the constitutional text. Hyman seems to think that it is just obvious that supplying "the equality of the protection of" federal law–a paraphrase he takes from an 1898 concurrence by Justice Brewer–means complying with an analagous requirement to the one placed on another sovereign. I cannot see how that gets unpacked textually. "Equality of the protection of federal laws" is not any closer to "analogous antidiscrimination requirements to those governing the executive branch" than is the unadorned text of the equal protection clause: "equal protection of the laws."
It is true that the distinction between "the laws" and "its laws" is relatively minor, on my reading. But this is no surprise. No one, I think, mentioned the "its laws"/"the laws" difference during the drafting of the clause in 1866. Edmunds pointed out the difference in response to Florida's mistranscription of the amendment in 1868, and Bingham pointed out the inclusion of federal law in January 1867. Bingham mentioned the supremacy clause, however, at the end of the same sentence. Testa was based, of course, in the Supremacy Clause, but it is hard to see how Edmunds and Bingham are referring to anything beyond a Testa-like principle. Edmunds was extremely clear about his views of the Equal Protection Clause and the Privileges or Immunities Clause, the former in the debates leading to the Civil Rights Act of 1871, or Ku Klux Act, and the latter in the debates leading to the Civil Rights Act of 1875. Bingham also construed the Equal Protection Clause to refer to the obligation to enforce the law in 1871. Hyman deems the "its law"/"the laws" distinction far more momentous than did the actual Reconstruction Republicans themselves.]
Posted at 3:09 PM