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09/15/2020

Evan Bernick: Antisubjugation and the Equal Protection of the Laws
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has  posted Antisubjugation and the Equal Protection of the Laws (55 pages) on SSRN.  Here is the abstract:

This Article challenges 150 years of conventional wisdom regarding whether the Fourteenth Amendment protects people against “private” violence and secures “positive” rights to governmental aid. The conventional wisdom is that it does neither; this Article argues that it does both. More specifically, it contends that (1) the original meaning of the Equal Protection Clause imposes an affirmative duty on states to protect the life, liberty, and property of all people; (2) the original function of the Clause was to prevent subjugation of people’s lives, bodies, and possessions by state and nonstate actors; and (3) the Supreme Court has since its 1883 decision in the Civil Rights Cases misinterpreted the letter and undermined the spirit of the Equal Protection Clause by denying (1) and neglecting (2).

Scholars have long criticized the Court’s reasoning in The Civil Rights Cases and more recent state-action and positive-rights decisions like DeShaney v. Winnebago County Department of Social Services and United States v. Morrison. But the leading alternative theories of the Equal Protection Clause either deny that the Fourteenth Amendment contains any state-action/no-positive-rights limitations or hold that equal protection of the laws entails only a narrow duty to protect people against violence. Against the former, I ground my constitutional objection to the state-action doctrine in the original meaning of the Equal Protection Clause. Against the latter, I claim that the affirmative duty to protect guarantees not only protection against violence but protection against other forms of subjugation—that is, subjection of the bodies and possessions of some to the untrammeled will of others. An arrestee may be subjugated through a physically coercive police interrogation; an evictee may be subjugated through a civil proceeding that deprives them of their home; a criminal defendant may be subjugated by being detained owing to failure to make bail.

Putting constitutional theory in conversation with ongoing social movements, I suggest that the “Civil Gideon” movement and the Movement for Black Lives might find constitutional resources in the letter and the spirit of the Equal Protection Clause. Finally, I propose that Congress is best-situated among federal institutional decisionmakers to thwart subjugation and that the Court’s lack of confidence in its own institutional competence ought no longer serve as an excuse for disabling Congress from enforcing the Equal Protection Clause.