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07/31/2013

Gary Lawson, Guy Seidman & Robert Natelson: The Fiduciary Foundations of Federal Equal Protection
Michael Ramsey

Gary Lawson (Boston University School of Law), Guy I. Seidman (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law), and Robert G. Natelson (The Independence Institute; Montana Policy Institute) have posted The Fiduciary Foundations of Federal Equal Protection (Boston Univ. School of Law, Public Law Research Paper No. 13-32) on SSRN.  Here is the abstract: 

In Bolling v. Sharpe, the Supreme Court invalidated school segregation in the District of Columbia by inferring a broad “federal equal protection” principle from the Due Process Clause of the Fifth Amendment. It is often assumed that this principle is inconsistent with the Constitution’s original meaning and with “originalist” interpretation.

This Article demonstrates, however, that a federal equal protection principle is not only consistent with the Constitution’s original meaning, but inherent in it. The Constitution was crafted as a fiduciary document of the kind that, under contemporaneous law, imposed on agents acting for more than one beneficiary – and on officials serving the general public – a well-established duty to serve all impartially. The Constitution, like other fiduciary instruments, imposes a standard of equal treatment from which lawmakers and officials cannot depart without reasonable cause. Although the Constitution’s original meaning does not precisely define the answers to all “equal protection” cases, and does not necessarily prescribe norms identical to those of existing equal protection jurisprudence, it clearly does prohibit racial discrimination of the kind at issue in Bolling.

I expect this paper to attract a good bit of attention, as it is written by three prominent originalists and takes issue with a longstanding originalist assumption.