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A Reply to Hyman on Equal Protection
Chris Green

Thanks to Andrew for his spirited criticism of my view of the Equal Protection Clause (contained in articles here and here). I am, however, unpersuaded.

By way of background, my view is that the clause—"[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws"—gives all persons within each state's jurisdiction an entitlement to "protection of the laws," which encompasses both literal protection from violence and the enforcement of the laws.

Andrew criticizes my view as too broad in one way and too narrow in another. I am wrong, he thinks, to interpret the Equal Protection Clause as (a) requiring protection, as well as equality, and (b) not requiring equality with respect to all government benefits, such as education, but only with respect to "protection of the laws." (To be sure, I think racial equality in education is covered by the Privileges or Immunities Clause--see here and here.) Andrew follows the traditional interpretation in Yick Wo v. Hopkins (1886) that "the equal protection of the laws is a pledge of the protection of equal laws," reading "protection of the laws" not as a distinct entitlement, but as a reference to all government benefits.

As I see it, Yick Wo represents improper adjectival transmigration: a requirement of equal protection is simply not the same as a requirement of equal laws. My articles present, at stupefying length, 5 categories of argument for this view, none of which Andrew rebuts. 

First (here at 34-43), the allegiance-for-protection tradition in American political thought views obedience to the government as an exchange for protection--not government benefits in general, but specifically protection from violence. This interpretation perfectly fits the "within its jurisdiction" bit, because those within a state's "speaking of the law" (i.e., its juris-diction) are those subject to its decrees: the exact set of people entitled to protection under the allegiance-for-protection tradition.

Second (here at 43-69), "protection of the laws" is repeatedly used as a distinct entitlement related to the remedial and law-enforcement functions of government, not generically as "government benefits," in nineteenth century literature. Indeed, Andrew's examples are very similar to the sorts of usages I canvass.

Third (here at 71-75), the text of the Equal Protection Clause, especially the "within its jurisdiction" bit, fits very poorly with the Yick Wo view. For one thing, it would specifically exempt racial exclusions on in-migration, a classic case of the sort of inequality against which the Fourteenth Amendment was aimed, from the Clause.

Fourth (here at 224-54), the Republicans in 1871 repeated this interpretation over and over again at enormous length. The generic-antidiscrimination view of the Equal Protection Clause was, as far as I have seen, first unmistakably articulated only in 1872, by Senator Oliver Morton (see here at pp. 10-11).

Fifth (here at 255-77), the Privileges or Immunities Clause was originally thought to do the antidiscrimination (i.e., equal-citizenship) work of the Fourteenth Amendment. Senator Matthew Carpenter, for instance, when he argued that Myra Bradwell had a right to practice law despite being a woman, appealed only to the Privileges or Immunities Clause, not the Equal Protection Clause, and even stated explicitly that the only clause that could invalidate racial restrictions on the right to practice law was the Privileges or Immunities Clause.

Andrew gives us four pieces of evidence: the 1864 Republican Party platform, which referred to black troops' equal entitlement to "the full protection of the laws of war," the Civil Rights Act of 1866, which referred in its first section to "full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens," and in its fourth section to the goal of "protection to all persons in their constitutional rights of equality before the law," the Bingham Amendment, postponed by the House in February 1866, which referred to "equal protection in the rights of life, liberty, and property," and Representative Raymond's January 1867 expression of hope that "there shall be in the Constitution some provision more effective than any yet existing for an equality of rights of all men in this country, and for their protection in the enjoyment of them; for an absolute and immediate equality of civil rights, and for an equality of political rights just as soon as the other and more pressing necessities of the nation will permit."

None of these pieces of evidence tells significantly against a protection-based view of "protection of the laws."

Raymond's 1867 statement, the 1864 Republican platform, and section 4 of the Civil Rights Act of 1866 use "protection," "protection of the laws," or protection in particular rights to refer to the enforcement of the law. Raymond wants an equality of rights and protection in the enjoyment of them. The Republicans of 1864 wanted the laws of war enforced for black soldiers. The Civil Rights Act of 1866 aimed to enforce constitutional equality rights (though it is not obvious what "their constitutional rights of equality before the law" referred to before the Fourteenth Amendment itself was passed; the Civil Rights Act was enacted in April 1866, and the Fourteenth Amendment not even proposed by Congress until June 1866). Use of "protection" or "protection of the laws" to refer to law enforcement was common; indeed, I accumulate a lot more evidence of similar uses of "protection of the laws" here at pp. 43-69. This does not mean, however, that "protection of the laws" can encompass benefits like education. Many, many usages of the term contradict the government-benefits-in-general reading. Moreover, the full context of Plank 7 itself seems to associate "protection of the laws" with redress: "7. Resolved, That the Government owes to all men employed in its armies, without regard to distinction of color, the full protection of the laws of war—and that any violation of these laws, or of the usages of civilized nations in time of war, by the Rebels now in arms, should be made the subject of prompt and full redress."

Andrew also asserts that "equal protection of the laws" must mean something significantly different from "equal protection in the rights of life, liberty, and property" (in the Bingham Amendment) or "full and equal benefit of all laws and proceedings for the security of person and proprerty, as is enjoyed by white citizens" (as in the Civil Rights Act of 1866 section 1). 

It is easy to be over-confident, I think--and easy to be subject to motivated cognition--when assessing unexplained changes from a draft to a final version. Sometimes later drafts are simply intended to be clarificatory, and we have particularly good reason to think so when an original draft is unclear or redundant, as the Bingham Amendment and Civil Rights Act were.

The interpretation of the Bingham Amendment was hotly contested, and the representatives who refused to pursue the Bingham Amendment because of interpretive difficulty, but later approved the Fourteenth Amendment, obviously thought the Fourteenth Amendment was clearer. To say that the Bingham Amendment had a clear meaning from which the later Amendment obviously intended to depart in a particular way is anachronistic. In 1871, for instance, Bingham and Farnsworth disagreed about the simple issue of whether congressional power was bigger or smaller under the two provisions. A federal-power-favoring Supreme Court cited only Bingham's half of the debate in Katzenbach v. Morgan (1966), and a relatively federal-power-resistant Court cited only Farnsworth's half in Boerne v. Flores (1997). Both seem to be instances of motivated cognition. Better to take all of the Bingham Amendment material, including the exact relationship of "equal protection of the laws" to "equal protection in the rights of life, liberty, and property," with a substantial grain of salt.

What of the Civil Rights Act? As with the Bingham Amendment, the relationship of "full and equal benefit of all laws and proceedings for the security of person and property" and "equal protection of the laws" is unclear. If we include enough context of the Civil Rights Act to make a complete sentence, the statute seems trebly redundant: "[S]uch citizens ... shall have the same right ... to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens." The freedmen are to have the same right to full and equal benefit of security-providing laws as whites. "Full" here, embedded within a sameness-of-rights requirement, does no obvious work contributing to the meaning of the Civil Rights Act; the requirement is simply that blacks receive the same security or person and property as whites. It therefore seems a mistake to imbue with too much significance the lack of "full" in later texts, written in significantly different language, as though incomplete versions of entitlements are implicitly permitted whenever "full" is left out.

All of this said, the position in my articles with which I am most doubtful--and concerning which I am in conflict with John Harrison, one of the pioneers of this basic interpretation--is the issue of whether the Equal Protection Clause both requires protection of the laws and requires equality (as I would take it), or merely requires equality (as Harrison would, though he notes the issue is "not easy"). While Andrew's broad any-government-benefits interpretation of "protection of the laws" seems plainly mistaken, I am less sure of the equality-only portion of his reading. (As long as the state is fully protecting some people within its jurisdiction, of course, an equality-of-protection rule would require it to protect everyone fully, so the practical difference between my view and Harrison's is not great.)

As I read it, following even earlier pioneers of the protection-based reading, like Jacobus tenBroek, requiring a state to supply [adjective] [noun] is generally a requirement that the state supply [noun], and additionally to make sure that that the [noun] is [adjective]. A requirement that the state supply nutritious lunch is not satisfied by supplying nutritious breakfast. It's got to be lunch, and the lunch has to be nutritious. A requirement to supply red pencils is not satisfied by supplying red pens. Similarly for a requirement to supply equal protection. It's got to be protection, and the protection has to be equal. Harrison recognizes this basic point when applied to "hot lunches," but then says (101 Yale L.J. at 1448) it doesn't apply to equality requirements; requiring someone to supply equal lunches to everyone would be, as Harrison sees it, satisfied by supplying no lunches to anyone. My linguistic intuitions differ on Harrison's example. "Classes modified by 'equal' do not usually mark out a nonempty subset of the class," Harrison says. But why think that? He gives no further examples or linguistic explanation of the principle. Here is a contrary example: Article V's entrenchment of states' "equal suffrage in the Senate." Denying all states suffrage in the Senate (equally!) would not comply with that rule, I take it.

If the Equal Protection Clause forbade states to deny "equality in the protection of the laws"--so that the requirement was equality, and "in the protection of the laws" was a limiting condition on that requirement--then it would only require equality regarding protection. But as it is, protection is the requirement, and equality is the further condition. For more on this point, see here at 8 nn. 30 & 33 (textual arguments of Bunch and Huhn) and here at 234-35 (protection, rather than equality, seen as fundamental by several Republicans in 1871, though not all of them). 

[Update: Hyman responds.  As for Yick Wo, the only way to get a generic “equal laws” requirement out of the text of the Equal Protection Clause that would apply to benefits like education is to read “protection of the laws” as “government benefits.”  Yick Wo makes clear that administration as well as legislation is covered with its reference to laws “administered by public authority with an evil eye and with an unequal hand,” but that’s not the same as the bit about “equal laws.”  The Republicans of 1871 also made the application of the Equal Protection Clause to administration as well as legislation perfectly plain themselves (see here at 232-34), despite disagreeing with the ban-on-all-discrimination view.

Andrew thinks the Equal Protection Clause guards both law enforcement and across-the-board equality of laws, and he thinks that's the way to make both words contribute to the meaning of the Clause.  It’s not clear, though, exactly how that works textually.  If the text said no state shall deny “the equality and protection of the laws,” maybe he could get where he wants to go, but of course it doesn’t.  “Equal” modifies the protective duty, rather than imposing an independent one.

The use of “protection” to distinguish civil rights from voting rights fits poorly with the application of the Equal Protection Clause to persons, not just citizens, because civil rights are historically the rights of citizens (see here at 26).   The Privileges or Immunities Clause, however, covers only citizens; if it, instead of the Equal Protection Clause, is the Amendment’s generic antidiscrimination provision, it is thus easy to see why equality in voting would not be covered, at least in 1868, because of the traditional distinction between political and civil rights.  Literal protection and law enforcement aren’t voting, of course.  But once we have an open-ended “equal laws” requirement—a requirement that covers things like education—it’s not at all clear, textually, why that doesn’t extend to voting too.  Reading “protection of the laws” as “rights other than voting” is implausible, and certainly doesn’t come up in my review of the usage of “protection of the laws.”

As for Blackstone on the declaratory and remedial functions of the law—only one of many, many sources of information in my articles on the meaning of “protection of the laws”—it seems clear from the context in 1 Commentaries *55 to *56 that the remedial function is not limited to the rights that Blackstone delineates in the declaratory function.  Blackstone describes natural rights at *54, and it is sensible to assume that the remedial part of the law remedies breaches both of natural rights and of those recognized in the declaratory part of the law.  If we think there is an irreducible core of natural rights that states must enforce (i.e., basic life/liberty/property rights against murder, kidnapping, and theft), and states are also obligated to give everyone the opportunity to enforce all of their statutory and common-law rights too, my interpretation seems to fit Blackstone’s use of “protection of the law” perfectly.  The declaratory and directory parts of the law need the remedial part of the law, but so do natural rights.]