In a recent blog post, Michael Rappaport wrote that the Equal Protection Clause (EPC) may have originally been "about remedies" instead of about protecting people against all unequal laws. I would like to briefly explain why Professor Rappaport's view appears to be compatible with the orthodox view that the EPC provided a constitutional basis for the Civil Rights Act of 1866.
It seems uncontroversial that the EPC guarantees "the equality of protection of the laws", and also that this "protection" refers at least to remedies for the violation of rights that are guaranteed by pre-existing laws. For present purposes, let's call that the EPC's "core." Even if the EPC means more than that, it surely covers those things among others.
Now consider the last two words of the EPC: "the laws." If they refer only to the laws of the state, then the original meaning of the EPC's core (as defined above) would obviously not bar unequal laws that guarantee legal rights in a discriminatory manner.
But, if the words "the laws" include federal statutes, then things get more interesting, and then the EPC's core would include a requirement that states not deny the equality of remedies that one finds in federal statutes. This last requirement goes to the substance of state laws, instead of just how they are being applied, enforced, or administered.
The lead author of the Fourteenth Amendment, John Bingham, said that the word "laws" in the EPC does include both the laws of the state as well as federal laws, but does not include the laws of other states. Likewise, when the state of Florida ratified the Fourteenth Amendment in 1868, that state incorrectly used the phrase "of its laws" instead of "of the laws," and Senator George Edmunds objected at length because he did not want to exclude the Civil Rights Act of 1866 from the word "laws." Edmunds' objection was quashed only because most of his colleagues did not think that any recitation errors were relevant, given that Florida's ratification did not need to include any recitation at all.
It was a very common notion in 1866 that the only purpose of the Civil Rights Act of 1866 was to guarantee "equal protection." The EPC ensured the constitutionality of the Civil Rights Act of 1866 by forbidding states to deny the equality of protection that the Civil Rights Act required in federal jurisdictions (e.g. territories). This conclusion becomes even more compelling if we suppose that the other parts of the Fourteenth Amendment are incapable of ensuring the constitutionality of the Civil Rights Act of 1866. As the U.S. Supreme Court has correctly said, "the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866.”
Posted at 9:57 AM