« Legal Theory Lexicon: Originalism
Michael Ramsey
| Main | Jay Schweikert on Originalism and Qualified Immunity
Michael Ramsey »


Judge Eric Murphy on Denying Equal Protection
Michael Ramsey

Judge Eric Murphy, concurring in the recent Sixth Circuit case Estate of Romain v. City of Grosse Pointe Farms, argues that claims that the police failed to give adequate protection should be understood as equal protection claims, not substantive due process claims (and citing, among other authorities, originalist scholars John Harrison and Christopher Green): 

At first blush, the Equal Protection Clause’s text—barring the State from “deny[ing] to any person . . . the equal protection of the laws,” U.S. Const. amend. XIV, § 1—may provide a more plausible textual hook than the Due Process Clause for claims that the police intentionally denied a specific person (a so-called “class of one”) the protection of the criminal laws that everyone else enjoys. Indeed, while it is now well-established that the Equal Protection Clause provides a general antidiscrimination mandate for all state acts, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam), some commentators have cited historical materials suggesting that remedial laws (like the laws implicated here) fall within the center of the “protection of the laws,” see John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1435–36 (1992) (citing 1 W. Blackstone, Commentaries *55–56). These protective laws stand in contrast to, say, public-employment decisions in which “the government acts in a more proprietorial and less regulatory capacity.” SECSYS, LLC v. Vigil, 666 F.3d 678, 690 (10th Cir. 2012) (opinion of Gorsuch, J.) (discussing Engquist v Ore. Dep’t of Ag., 553 U.S. 591 (2012)).

History supports this instinct too. “[T]he suppression of private violence [was] the core concern of the Equal Protection Clause.” Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. C.R. L.J. 219, 254 (2009). “The unwillingness of the law enforcement authorities in southern states to protect the newly freed blacks from white vigilante groups such as the Ku Klux Klan was an important motive for the enactment of the equal protection clause.” Del Marcelle v. Brown Cty. Corp., 680 F.3d 887, 889 (7th Cir. 2012) (en banc) (opinion of Posner, J.). For example, Congress enacted the 1866 Civil Rights Act to give “nonwhites ‘full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.’” David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 349 (1985) (quoting Act of Apr. 9, 1866, § 1, 14 Stat. 27, 27). And the framers enacted the Fourteenth Amendment to ensure this act’s constitutionality. Id. at 347–49. To be sure, the Equal Protection Clause’s primary target may have been racially discriminatory refusals to protect persons from private violence. Id. at 349. But, whatever its purpose, the Equal Protection Clause’s text is not limited to race-based denials of the protection of the laws. Cf. District of Columbia v. Heller, 554 U.S. 570, 577–78 (2008); Crawford v. Washington, 541 U.S. 36, 61–62 (2004).

The Equal Protection Clause’s text and history suggest that the right question to ask is: When, if ever, do equal-protection principles give a specific individual the right to challenge a state officer’s intentional refusal to provide the protection of the laws that keep the public safe from private violence? Figuring out the right question is the easy part; determining the appropriate answer is much harder. ...

(Via How Appealing.)