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A Comment in Response to Dale Carpenter Regarding Equal Protection
Andrew Hyman

Mike Ramsey recently quoted Professor Dale Carpenter as follows: “The Equal Protection Clause is a self-conscious repudiation of exclusion and hierarchy supported by nothing more than ancient practice.”  Perhaps it would have been wise if the clause really said that, but I don’t think it was written that way.  Presumably, Professor Carpenter means that the exclusion and hierarchy are supported by nothing but ancient practice together with current legislative action.  As I understand it, this clause of the Constitution does not endorse unreasonable exclusion and hierarchy, but neither does it authorize the federal judiciary to make such reasonableness determinations all by itself.

To start with, let us consider what a few legal luminaries have had to say about the original meaning of this clause of our Constitution.  Keep in mind that these scholars either support a non-originalist meaning of the clause, or alternatively would rely upon other constitutional clauses or values to advance equal rights.   With that caveat out of the way, consider: Professor Laurence Tribe says that “the Constitution lacks a textual basis for much of what is commonly attributed to the very notion of ‘the equal protection of the laws’….[which] was taken to mean less than ‘the protection of equal laws.’”  As far as I am aware, Professor Steven Calabresi has not altered his view that, “the Equal Protection Clause says nothing about equality in the making or implementing of equal laws.” According to Professor Kermit Roosevelt, “the most natural reading of ‘equal protection of the laws’ probably takes it to be about application or enforcement, rather than content.”  Judge Richard Posner is on that bandwagon too: “on its face the equal protection clause guarantees not legal equality but merely equal protection of whatever laws there may happen to be….”  Others could be added to the list, which should at least give pause to anyone who suggests, as Professor Carpenter does, that the U.S. Supreme Court was actually given power in 1868 to strike down whatever governmental classifications that it deems unreasonable and/or hierarchical.  A further caveat: I do not entirely agree with Professor Carpenter but also do not entirely agree with those other luminaries whom I’ve quoted; the truth lies, as it so often does, in the middle.

So where did Professor Carpenter’s notion come from?  It is certainly not original to him, so where did it originate?  As best I can tell, the historical source most commonly cited for this idea is the speech of Senator Jacob Howard introducing the Fourteenth Amendment in the Senate, in 1866.  According to the Congressional Globe, he said: “This abolishes all class legislation in the states, and does away with the injustice of subjecting one caste of persons to a code not applicable to another.”  Don’t get me wrong, these are excellent sentiments to guide legislative action, but if Howard was correct then the Supreme Court could legitimately (though unwisely) characterize virtually any legislative classification as verboten, whether it be a law that imposes special burdens or disabilities upon kleptomaniacs, or children, or police officers, or what have you.  Howard is recorded in the Congressional Globe as saying those words, but I (like those luminaries I mentioned) do not think they are fairly inferrable from the original meaning of the text of the clause.  Equally significant is that not a single solitary one of the newspaper accounts of Howard’s speech included anything like that quote in the Congressional Globe about class legislation.  See hereherehereherehereherehere and here.  However, Howard’s line about “class legislation” did show up in his handwritten draft of that speech.  Why it was omitted from all news reports remains a mystery, though it may be that he skipped over that part of his draft speech, and only included it in the Congressional Globe by altering “the transcript prior to its printing” (which is one of David Hardy’s guesses).

There were other speakers during the ratification period from 1866 to 1868 who mentioned that the Fourteenth Amendment would prohibit class legislation, but there were still others who were more careful and precise.  I myself believe that the Fourteenth Amendment does bar states from having various laws that amount to class legislation, but only if Congress has restrained the executive branch from making such discriminations.  The Equal Protection Clause does not say that “no state shall deny equal protection to any person within its jurisdiction,” although that is how the U.S. Supreme Court has interpreted it.  Can you spot the words I have omitted?