« More on Professor Bilder and Originalism
Michael Ramsey
| Main | Gienapp on Barnett on Gienapp on Originalism
Michael Ramsey »

04/04/2017

The Take Care Clause and the Equal Protection Clause
Mike Rappaport

I was talking about the Take Care Clause today and I realized that there was an important connection between the original meaning of two clauses I had never previously recognized: the Take Care Clause and the Equal Protection Clause.  Most people don’t see much of a connection, but there is an important connection as to the original meaning: they are both about prohibiting executives from not enforcing the law.

While the modern meaning of the Equal Protection Clause is that it protects against unequal laws, the probable original meaning is different.  The Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”  The protection of the laws had a traditional meaning that referred to the right of people to be protected in their rights by the law – that is, something like the remedial aspects of the laws as well as the actions of the government in protecting them.  See here and here.   For example, William Blackstone wrote:

The remedial part of a law is so necessary a consequence of the former two [i.e., the declaratory and directory parts], that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting these rights, when wrongly withheld or invaded. This is what we mean properly, when we speak of the protection of the law.

The Clause, then, prohibited states from providing this protection unequally – from protecting whites, but not blacks.  This accords with one of the core purposes of the 14th Amendment, which was to prohibit sheriffs from ignoring lynchings of blacks by whites.

With this understanding of the Equal Protection Clause, its connections with the Take Care Clause should be evident.  The Take Care Clause is about obligating the President to faithfully enforce the laws and clearly it requires that the President not ignore law violations of the sort that the Equal Protection Clause was designed to address.

Thus, these two clauses were about the obligations of executives – the federal and the state executives.  In both cases, the primary focus was on constitutionally obligating the executive to enforce the law and not to ignore law violations.

Clearly, then, American history (and English history which it drew upon) recognized the crucial importance of executives enforcing the laws.  Of course, these struggles are not just part of history but continue.  I suppose we will always face them.