Updated 4/4/08
I do not think there is any other single Supreme Court case in which I am asked to comment on more than the case of Plyler v. Doe - especially now with more press attention being devoted to school overcrowding and the costs associated with teaching non-bona fide resident children belonging to citizens of other nations. I have not devoted any lengthy commentary on this case for the simple reason the four dissenting justices (O’Conner, Burger, Rehnquist and White) thoroughly highlighted the majorities injustice - though they didn’t go as far as I am about to.
For example, Chief Justice Burger writing for the minority pointed out:
The Court’s holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of “remedies” for the failures — or simply the laggard pace — of the political processes of our system of government. The Court employs, and, in my view, abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others.
Burger’s view that the majority abused the Fourteenth Amendment is an understatement. The majority rested their ruling on the Fourteenth Amendments Equal Protection Clause (EPC). According to the majority the “Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.” While on its face this sounds to be true, it is important to point out the clause reads “the equal protection of the laws,” not the equal enjoyment of any law.
The man responsible for the language, Rep. John A. Bingham of Ohio, pointed out the language says, “no State may deny the equal protection not of its laws, but of the laws.” Three years after the adoption of the Fourteenth Amendment, Bingham declares what laws deserves equal protection: “[N]o State should deny to any such person any of the rights which it guaranties to all men.” What laws do States guarantee to all men post Fourteenth Amendment? The laws of due process, of course.
I am not aware of any State law that ever guaranteed an education to anyone regardless of his or her legal status.
To give the opinion of the court some semblance validity, the majority had to first paint the EPC as having broad objectives far beyond the historical meaning and source of the text. Justice Brennan (of Roe v. Wade fame) wasted no time in doing just that by quoting Sen. Jacob Howard out of context in bolstering the courts claim the EPC was broad:
The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. 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…
Read out of context this would give the court all they needed in striking down a Texas statute that withheld state funds for educating children who have not been legally admitted to the United States. However, let us read the next sentence from Sen. Howard, which Justice Brennan conveniently omitted:
It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?
Sen. Howard obviously is not talking about social equality in public benefits, but laws for the protection against “arbitrary spoliation” in the administration of justice. Over in the House of Representatives, Chairperson of the Reconstruction Committee, Rep. Thaddeus Stevens, explained the EPC in identical terms when introducing it before the House:
Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man… Now different degrees of punishment are inflicted, not on the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men.
Perhaps more damning for the court is the fact Sen. Howard found no authority under the 14th Amendment to impose upon the State of Mississippi the following conditions on February 14, 1870: “That the constitution of Mississippi shall never be so amended or changed as to deprive any citizens, or class of citizens of the United States, of the school rights and privileges secured by the constitution of said state.” Senator Howard defended the constitutionality of the bill as “preserving and upholding a republican form of government” under the clause that says the “United States shall guarantee to every State in this Union a Republican Form of Government.”
Rep. John A. Bingham (OH) stated when he first introduced the words “equal protection” on February 28, 1866, said those words already existed under the U.S. Constitution. Where?
Bingham said because the Fifth Amendment adopted the words “any person” and not the Magna Charta’s “freemen,” the “people by their Constitution declared the equality of all men, and by the express limitation forbade the Government of the United States from making any discrimination.”
Discrimination in what? Discrimination in the laws of due process for the protection against arbitrary denial of life, liberty or property (freehold), i.e., the administration of justice. All very simple and well understood concepts of American and English law.
In a speech in December of 1870, he said the EPC meant that no State “shall deny to the chiefest offender hitherto against the rights of the people the equal protection of the laws.” Three months later in a March 31, 1871 speech, Bingham pointed out the words “equal protection of the laws” were the words of the Magna Charta: “We will sell to no man, we will not deny or delay to any man right or justice.”
Bingham of course, is reciting the Charta’s 40th Chapter, and in another speech approvingly quotes Henry Hallam, whom he called England’s “brilliant and profound constitutional historian,” who said Chapters 39 and 40 of the Magna Charta protected the “personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation.” In a March 31, 1871 speech on the Equal Protection of the laws, he added this:
Surely the gentleman (Farnsworth) then supposed the words “equal protection of the laws” were more than a glittering generality; that they were to be enforced to the extent of securing all guarantees of life, liberty, and property as provided by the supreme law of the land, the Constitution of the United States.
In 1875 when Congress was debating another Civil Rights Act, proponent of the proposed civil rights legislation, Rep. Robert B. Elliott, adopted the same meaning as the Supreme Court had recently given the clause: “No state shall deny equal justice in its courts.” No one objected.
In other words, the EPC’s imported meaning from the Magna Charta means justice must not only be open at all times, but equally administered to all who go before the laws of justice along with equal punishments. This of course explains why both Sen. Howard and Rep. Stevens introduced the clause before Congress the way they had.
After the adoption of the Fourteenth Amendment the United States never claimed any power over the education of aliens within the States. Article VII of the 1868 treaty with China provided that “Chinese subjects shall enjoy all the privileges of the public educational institutions under the control of the United States which are enjoyed in the respective countries by the citizens or subjects of the most favored nation.”
This carefully worded language did not grant to Chinese subjects any right to access State schools but only those schools under the control of the United States. An 1894 treaty with Japan touched on the issue of education of aliens, and it did not require compulsory education but instead assured Japanese children would have access to public education if State law provided for the public education of alien children.
In short, the Equal Protection Clause has nothing to do with State laws or policies involving education no more than the fortieth chapter of the Magna Charta ever did. If it had such application, then Bingham would never have approved of Ohio’s Supreme Court ruling that said the EPC in no way interfered with Ohio’s school segregation policies.
Plyler v. Doe is pure judicial fraud perpetrated by Great Society regulatory-minded jurists who had ideologically abandoned the notion of a federal government based on limited powers and objectives. Limited and defined constitutional powers have now been replaced with Great Society “judicial precedent,” leaving States and communities to be ruled by judicial fiat.
Related: Historical Meaning Behind ‘Equal Protection of the Laws’
Interesting points, although I might add that this interpretation of the equal protection clause seems to lend some support to those who argue that Brown v Board is inconsistent with the original meaning of the 14th amendment.
Well I just can’t say Thank you enough for putting this argument in a context that cuts right through all the nebulous ambiguity so often given as a basis for many arguments where clearly, it has no business even being introduced in the debate. I know of so many websites where it is thrown in the faces of so many where they think they are so entitled to so many services citing Plyler V Doe
Thanks again Mr Madison
In Reply to R Frade: Truth sucks, huh?
It is sad that the internet can be used to perpetuate trash like this. It is also incredible that you can mask your prejudice with pseudo-intellectual rhetoric.
“That the constitution of Mississippi shall never be so amended or changed as to deprive any citizens, or class of citizens of the United States, of the school rights and privileges secured by the constitution of said state.”
This is the first I’ve heard of this particular bill. I’m lost to understand why Sen. Howard could not find the equal protection clause empowering congress under section 5 to enforce this condition on the state which would had been a far less stretch of textualism than with invoking the guarantee clause. School rights never were considered having anything to do with a republican form government as it is strictly a political question.
Unless of course, the meaning is exactly as you say and Sen. Howard concurred. Just goes to prove the supreme court is not always supreme in determining the correct meaning of words.
I always wanted to know what was behind those words “equal protection of the laws.” Just goes to prove you cannot always trust the court to get history right.
I found that very interesting about the treaties following the adoption of the amendment. They say the judiciary is the weakest branch!
What an incredible paradox! A Constitutional amendment that was meant to recognize the US citizenship of black persons, and their descendent’s, who were brought to the US against their personal will is now (mis)used to permit the entry of willing persons that impedes the progress of their present descendants as intended by the 14th. Amendment. Blacks are migrants within their own country from the South to the North. With the extra pressures placed upon their employment, housing and access to legitimate government services such as schools by illegal immigrants, it’s patently obvious that the majority opinion in Plyler v. Doe was, in fact, a perversion of the 14th. Amendment. Shame on the Court.
“In short, the Equal Protection Clause has nothing to do with State laws or policies involving education no more than it had under Article 40 of the Magna Charta.”
Brilliant point, Mr. Madison.