Follow-Up on Equal Protection

…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

  • Fourteenth Amendment to the United States Constitution

On a different forum, I received a few comments in response to my post about the scope of the Equal Protection Clause. I found them interesting and will respond to them in turn.

  • I start by saying it is a mistake to rely on purpose rather than text, then invoking their “intent” later in the post, which is another word for purpose.
    • Response: It is a fundamentally different. I meant that it is wrong to find a purpose outside the text and use it to contradict the text. That is different from gauging the intent based on reading the text and comparing and contrasting different words in different parts, or even from finding a purpose that supplements the text.
      • Example: the requirement that Congressmembers be at least 25 years old (Art. I, § 2, ¶ 2). Maybe the founders said something about the purpose of the minimum age being to ensure that Congressmembers are not “too young.” However, 25 means 25. It would be improper to take that purpose and “decide” that because 25 is a lot younger now than it was then, 25 is now “too young” and the minimum age is automatically raised. That is using an external purpose to contradict the text and a mistake. By contrast, are the qualifications listed in that paragraph exclusive, or are they just a minimum and states are free to add more prerequisites for their Congressmembers? That is not answered in the text, and looking at a purpose to supplement and answer that question is fine. That was done in U.S. Term Limits v. Thornton (full decision).
  • “Those in Congress certainly did not intend for the Equal Protection Clause to prohibit discrimination based on sex, nor support the desegregation of schools, because they engaged in such actions themselves.”
    • Response: Do not confuse “original expected application” and “original meaning.” What the drafters expected the immediate implementation to be is not relevant, because a law is inherently a rule applied to future cases. What matters is the original meaning, and the original meaning was broader than race; that can be derived from the comprehensive phrasing of “equal protection of the laws” in contrast with the prohibition of denying voting rights based on only “race, color, or previous condition of servitude” in the Fifteenth Amendment.* Yes, the drafters of the Equal Protection Clause engaged in school segregation and sex discrimination. Today, we can be thankful that their words were better than their deeds.
  • “What is private action and state action is not always so clear.”
    • Response: That is true, and Shelley v. Kraemer (full decision) provides a significant ruling against private individuals using state officials to enforce their discrimination. Although the Equal Protection Clause would not prohibit private individuals from discriminating, it would prohibit using the police to enforce such discrimination. What is important to note, however, is that it does not mean private individuals are free to discriminate, as many states and the Federal government have laws that go beyond the EPC and prohibit private discrimination.
*On a side note, if you are interested in reading about the intentions you can see the various equal protection clauses existing in the states (p. 94-96) at the time, and read about Congress’s failure to adopt proposals to narrow it to racial and other specific types of discrimination (p. 46, 50, 83, 90-91, 97-100).

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