The phrase “Equal Protection of the Laws” is another way of saying “equal justice” or, “under the protection of law,” which was a popular expression during colonial times to show different religious sects and denominations were equal “under the protection of law.” The first version of the Fourteenth Amendment secured “to all persons in the several States equal protection in the rights of life, liberty, and property.”
The primary sponsor/author of the Fourteenth Amendments first section, Rep. John A. Bingham of Ohio, said the words “Equal Protection” were already part of the existing Constitution in the words “no person” and not “no freeman” shall be denied due process of the laws under the Fifth Amendment. In other words, even though there was no mention of “due process” in this early version, it was strictly understood to have meant the equal protection of those laws of “due process.” In his last major speech on the Fourteenth Amendment prior to it being submitted to the States for approval, pointed out no State under the original Constitution had no right to to deny anyone the equal protection of the laws:
No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection protection of the laws or to abridge the privileges or immunities of any citizen of the republic, although many of them have assumed and exercised the power, and that without remedy.
No State ever had a right to deny the Equal Protection of the Laws because to Bingham it was a “universal” right derived from the laws of due process:
The great men who made that instrument [U.S. Constitution], when they undertook to make provision, by limitations upon the power of this Government, for the security of the universal rights of man, abolished the narrow and limited phrase of the old Magna Charta of five hundred years ago, which gave the protection of the laws only to “freemen” and inserted in its stead the more comprehensive words, “no person;” thereby obeying that higher law given by a voice out of heaven:”Ye shall have the same law for the stranger as for one of your own country.”
Rep. Bingham also reminded members of the House of Representatives a number of times that the “Equal Protection of the Laws” were the words of the 40th Chapter of the Magna Charta: “We will sell to no man, we will not deny or delay to any man right or Justice.”
The insertion of these words into the Magna Charta was intended to fix England’s custom under King John of bringing gifts or payment to the King in order to obtain justice before his courts, or extorting fines from suitors or causing delay or denial to right of justice. In other words, under the 40th chapter the right to justice was no longer dependent upon the prerogative of anyone but of the law of the land.
One of the first acts of the First Congress in 1789 was to require all federal judges to equally administer those laws that protect all in their life, liberty and property by solemnly affirming to “administer justice without respect to persons, and do equal right to the poor and to the rich.”
While all State constitutions generally guaranteed due process of the laws, this guarantee could be denied or unequally administered to persons of color, lead to President Andrew Johnson in his December 1865 message to Congress to declare there should be “equal and exact justice to all men.” This became the battle cry behind Rep. Bingham’s quest to amend the Constitution to guarantee “equal and exact justice to all men” before courts of justice.
The Fourteenth Amendment’s Equal Protection Clause was an important addition for giving effect to the Equal Protection of the Laws under the Civil Rights Bill of 1866, which Bingham had said he intended to codify under the Fourteenth Amendment. With the addition of the Equal Protection Clause under the Fourteenth Amendment, the following protections of law under the 1866 Civil Rights Bill was given full effect: “[F]ull and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”
This is why Senator Howard introduced the Equal Protection of the Laws this way 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?
Rep. Thaddeus Stevens (Co-Chairman of the Reconstruction Committee) introduced the words in the House this way:
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.
Howard and Stevens clearly are not speaking of social equality, but rather equality of justice in due process. On December 20, 1870, Bingham removed all doubt to this understanding in a speech before the House on the meaning of the Equal Protection of the Laws:
What did this great people proclaim by the adoption of that amendment, with one unbroken voice, from Maine to California and to Oregon? It was this: that neither the Carolinas, nor Ohio, nor New York, nor Pennsylvania, nor any other State in this Union, shall deny to the chiefest offender hitherto against the rights of this people the equal protection of the laws, and especially of the Constitution and of all laws made in pursuance of it; equal protection with the first man in the Republic. In other words, it places Davis and Toombs and Slidell and Benjamin, who were of the architects of that atrocious revolt (civil war), under like protection of the law with Grant and Sherman and Sheridan, wherever they might be in the Republic, thereby proclaiming them citizens of the United States, and as such by the people’s decree, which no man shall question, entitled to the equal protection of the laws, and that no State should deny to any of them the equal protection of the laws. … They are thereby assured in the general rights of citizens of the United States, and enabled in everyplace proudly and truthfully to exclaim, “I, too, though the greatest of offenders against its laws, am a citizen of the Republic.”
In a December 20, 1870 speech, Bingham points out no State may deny the equal protection “not of its laws, but of the laws,” i.e., laws of due process. If these words really meant, “any law,” then it would have been a total waste of time to adopt the Fifteenth Amendment because any law that denied suffrage because of race would have easily been found inherently unequal.
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.
And finally, it is important to note that only courts administer the laws of due process in the course of proceedings of justice who must recognize equality of all persons before them and not cities, counties, jails, police departments, or even schools. No State would had ratified an Amendment to the Constitution that would have required direct social equality in every law.
i am reserching for we the people and this has to do with my question it helped a lot thanks for posting
If the commerce clause can be used to justify regulation within states, it can also be used to justify regulation within foreign nations.
I never realized congress had defined the meaning of the equal protection clause to proceedings of law. Thanks for pointing that out!
All the chatter about “all persons” having the right to “equal protection” of the laws is a SCAM, a fraud. The Supreme Court ony jas consistent;ly ruled that equal protection for persons in a “suspect classificationin”l sudchas ra ce, sex being the major contributors. Laws that discriminate against the public in general and no singling out members of suspect classification the ordinary cititizen can be denied equal protection if they are not specially singtled out for reasons of race aNnd/or sex.
we all can read and understand that the words, “no persoin shall be denied equal protection of the law Apparently the courts are too busy to permit the regular and ordinary persons having the right to equal protection. The Constitution is supposed to be read using the words of the Constitution, yet the courts universally describe the 14th Amendment as applying tlo newly freed “colored people”.
The constitution also does not guarantee that federal judges be appointed for life. The constitution states that the apponted judges shall”serve during good behavior”. I say Scalia, Roberts andf Alito should be impeached and reemoved from the Court.
Makes sense to me for no other reason the language speaks only of the “protection” of the laws. It had always been the unquestioned purpose of the laws of due process to “protect” people from arbitrary actions of judges. How the clause became morphed into guaranteeing “all laws” should apply to EVERYONE is very puzzling.
Mike said: “I think that it is interesting to see the contrast in the view of the role and importance of English law and the common law tradition as the basis for American law between this article and the discussion of “natural-born” citizenship elsewhere on this blog.”
One problem: Magna Charta had absolutely nothing to do with allegiance to the crown. I know this disappoints you because you wish so much to prove every person born in the USA to be instantly a natural subject, owing perpetual allegiance to the POTUS just like it was once under common law to the king.
Congress was probably aware of this truth and instead had to rely on, cough, the commerce clause to justify their 1964 civil rights act and not the 14th amendment.
Interesting analysis and perspective.
One small note, I think its “Magna Carta,” translating to “Great Charter” which could refer to its important place oin English law, or to the large size of the parchment on which it was written.
Evidently, the charter itself has changed greatly in scope and importance over the centuries, as one monarch succeeded another.
I think that it is interesting to see the contrast in the view of the role and importance of English law and the common law tradition as the basis for American law between this article and the discussion of “natural-born” citizenship elsewhere on this blog.