The Federalist Blog

Equal Protection of the Laws simply means all persons shall be tried and punished equally before courts of law as it did under Common Law. The clause has no application outside of criminal law which explains why the Fifteenth and Nineteenth Amendments were needed.

Justice Scalia speaking of the Fourteenth Amendments Equal Protection Clause (EPC) to students at UC Hastings College of the Law in September 2010 remarked, “nobody thought it was directed against sex discrimination.” Scalia could have added nobody thought it was directed at segregation, elections, marriage or local civil law, either.

The phrase “Equal Protection of the Laws” is another way of saying “equal and exact justice” or, “under the protection of law.” Long before the Fourteenth Amendment came into existence the phrase “Equal Protection of the Laws” was used in England as synonymous with “impartial administration of justice.” Bills of Pains and Penalties were objected on the grounds it placed subjects outside of the protection of laws of Due Process in court proceedings.

First thing one must understand from the words of the clause is what it does not say, such as equal rights, equal treatment or equal benefits, etc. The clause speaks only of laws of “protection.”

These laws of “protection” obviously must be the laws of Due Process since these are the only laws of protection of person and property that has been known to law for centuries. This is confirmed by the clauses primary author, Rep. John Bingham of Ohio, explaining how the Magna Charta “gave the protection of the laws only to freemen” while the Fifth Amendment’s Due Process clause used “more comprehensive words, ‘no person'” shall be deprived of life, liberty or property without Due Process of law, and thus, “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.”

This Equal Protection applied to citizens of a State within the limits of another State (but not their own State) because Due Process was a privilege and immunity of citizenship that followed citizens outside of their State under Section II of Article IV, and hence, already existed as a limitation against State action: “No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws,” explained Rep. Bingham. The problem at the time of course was not every State considered persons of color born in the United States to be a citizen which in return meant they could deny them the protections of law.

To remove any doubt, Rep. Bingham in his March 31, 1871, Congressional Globe remarks explicitly stated the EPC was only to secure equality in Due Process:

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.

A year earlier Rep. Bingham stressed “no State can deny the equal protection, not of its laws, but of the laws,” i.e., laws of Due Process protection.

The EPC was explained in the House of Representatives by Rep. Thaddeus Stevens (Co-Chairman of the Reconstruction Committee) as securing only Due Process in the administration of justice in State courts:

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.

Senator Jacob M. Howard explained the EPC in the same terms before the Senate:

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?

Apparently the Senate later considered “head taxes” that some states were unequally levying against immigrants depending on their nationality to be a penalty in law requiring the tax to be “equal” among all immigrants. This might have been a real stretch considering it was at war with the legislative debates but appears to be the only questionable assertion of its application by those who were directly responsible for its adoption.

Probably nobody explained the EPC better than Governor Oliver P. Morton of Indiana in July of 1866:

By this it is intended to throw the equal protection of the law around every person who may be within the jurisdiction of any State, whether citizen or alien, and without regard to condition or residence, not only as to life and liberty, but also as to property. It has happened in times past that several of the Southern States discriminated against citizens of other States, by withholding the protection of the laws life and liberty, and denying to them the ordinary remedies in the courts (be a witness, give evidence, enforce contracts, etc.) for the vindication of their civil rights, and hence the adoption of this provision.

It’s no wonder the Court in the 1873 slaughterhouse cases observed the only way for an Equal Protection case to come before the court was by “State oppression, by denial of equal justice in its courts.” History of the words proves the court correct here.

Some argue it would had been absurd for the insertion of two clauses securing the same guarantees of Due Process. This line of argument misses the point of how the two clauses operate: Removing the option of Southern States arguing they are not denying anyone Due Process by unequally applying it to different racial classes. In other words, the Fourteenth Amendment secures Due Process from both outright denial as well as from being unequally administered in State courts to different racial classes.

And finally, it is important to remember the only controversy sought to be addressed by inclusion of the Equal Protection Clause was how former rebel States under the administration of President Andrew Johnson were administering criminal law (black codes) with different degrees of punishments depending on color of the accused along with different trial rules (prohibition of black suspects to give evidence, be a witness, etc.) and not general public law. Blacks were also prohibited from seeking justice in courts to enforce contracts or protect real property ownership.

Mr. Bingham argued again in 1875 against the new Civil Rights Act that the clause could not be used as an instrument to interfere with public laws of the states outside of the courtroom:

I know of no power lodged in the central government to interfere in the domestic affairs of these States or their laws in absence of some positive organic act of a State that places one class of persons at an disadvantageous over another in the protection of life, liberty or property before their courts of justice for an offence made a crime. The fourteenth of amendments most certainly does not confer this power.

He was as absolutely correct then as he is now.