In the last generation or so, tremendous progress has been made answering what I regard as the hardest original meaning question – the original meaning of section one of the 14th Amendment. One important discovery is that to the extent that the 14th Amendment affords general protection against unequal laws, it comes from the Privileges or Immunities Clause.* This view now appears to command a majority among originalist scholars.
What then does the Equal Protection Clause do? It is a provision designed to focus upon “the protection of the laws” – mainly protection against and remedies for violation of rights. The core case was the failure of a southern sheriff to enforce the law against the lynching of former slaves. Thus, the Equal Protection Clause has a special focus on the arbitrary failure to enforce the law and the harms that result from it. This is important. The Equal Protection Clause is about impermissible prosecutorial discretion.
This analysis has particular significance for the failure of many state universities and several cities to enforce the laws against the illegal protests on college campuses. Depending on the reasons why the laws are not enforced against the protesters, this failure may constitute an Equal Protection Clause violation under the original meaning.
John Harrison’s pathbreaking article sets forth some of the analysis. He argues that the 14th Amendment enactors prohibit caste legislation and activity based on various grounds. In addition to race, he adds: “The forbidden subjects thus include politics, religion, and possibly sex.” Harrison points out that religion was considered to be an irrelevant consideration as to the definition and enforcement of rights. He also notes that discrimination based on political affiliation and beliefs – such as being a member of the Republican party or opposing slavery or supporting union – was a core concern of the Amendment enactors.
Thus, if the laws are not being enforced against the protestors because of sympathy for their politics or their religion – or if the law is not being enforced because of dislike for the politics or religion of the people and movements the protestors oppose – then that would violate the Equal Protection Clause.
It is important to stress this because it might seem that the only problems with the failure to enforce these laws is based on the modern understanding of the First Amendment. But whatever the correct original meaning is as to the First Amendment, the original meaning of the Equal Protection Clause may prohibit the actions of state universities and cities that are engaged in politically motivated failure to enforce the law.
* The equality requirement is imposed through different interpretations. For those who see Privileges or Immunites as protecting substantive rights, the equality requirement is impose by conferring these substantive rights equally. Others, who do not see the Privileges or Immunities Clause as conferring substantive right, see the equality requirement simply as an understsanding of the term “abridge.”
Posted at 8:00 AM