As noted by Mike Ramsey, David Gans blogs about a new paper he has written that appears to offer an interpretation of the original meaning of the Equal Protection Clause. While I have only skimmed the paper, I don't believe it can be satisfactory as it is. In recent years, a different understanding of the Equal Protection Clause has been developed which has very powerful evidence to support it. This interpretation was offered initially by John Harrison (in the Yale Law Journal in 1992) and then developed significantly in two articles by Chris Green (here and here). Under this interpretation, the Equal Protection Clause protects against the failure of the state to protect people from violations of the law. The focus of the Clause was on the historical evil of state officials, such as sheriffs, who ignored private violence by groups, such as the KKK, against blacks, unionists, and others who the former confederates opposed.
While Harrison's paper did a great job of developing this argument, Green's work has collected a tremendous amount of evidence in support of it. The evidence is so abundant that I believe this must now be regarded as the most likely original meaning of the Clause.
That said, I don't believe we have a full and final understanding of the relationship between the Clause and the remainder of Section 1 of the Fourteenth Amendment. The problem is, if the Equal Protection Clause does not provide equality, then what does under the Fourteenth Amendment?
There are three significant possibilities. First, Harrison and Green argue that the Privileges or Immunities Clause forbids the states from imposing caste type forms of inequality. Second, the Privileges or Immunities Clause might grant substantive rights (including certain common law rights) to all citizens of the United States. Since these substantive rights are constitutionally protected, all citizens would be protected from violations of those rights and thereby enjoy equality as to them. Third, the substantive component of the Due Process Clause– which may in fact exist — may prohibit certain unequal laws. Moreover, these different sources of the equality right may reinforce one another. In particular, the second and third sources may work well together.
It is a sad fact that we still don't have a good understanding of the original meaning of the 14th Amendment. Great progress has been made in the last decade or two, but we are still not there yet.
Gans briefly mentions the Harrison/Green interpretation of the Equal Protection Clause in footnote 43 of his essay. But his discussion is way too short and only superficially engages the contrary argument. His main point is that "Harrison’s reading is hard to square with the text, which requires equal protection of all laws, including legislative acts." But what Harrison and Green show is that the meaning of the term "protection of the laws" and by extension "equal protection of the laws" at the time did not require equality as to all laws. Thus, Gan's reply begs the question of what the text meant. Moreover, Gans does not even cite Green's work. While Gans does invoke the work of Melissa Saunders, who has criticized the Harrison/Green interpretation, Gans does not discuss the powerful criticisms of her work by Green.
Posted at 9:00 AM