Historical Meaning Behind ‘Equal Protection of the Laws’
by P.A. Madison on February 6th, 2009
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, marriage or local municipal 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 to on the grounds it placed subjects outside of the protection of laws of Due Process.
The laws of “protection” the clause speaks of obviously must be the laws of Due Process since these have been the well-known laws of protection of person and property 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 applied to the States as well because Due Process was a privilege and immunity of citizenship that followed citizens from state to 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,” said 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, e.g., freemen.
Rep. Bingham in his March 31, 1871 remarks explicitly states the EPC was to secure 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 is 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. It must be remembered Radical Republicans were firmly in control at this time so there was little standing in their way before their house-of-cards collapsed including their Fourteenth Amendment enforcement laws that were either ruled unconstitutional or repelled.
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 might argue it is absurd for the insertion of two clauses securing the same guarantees of Due Process. This line of thinking misses the point of its chief framer; removing the option of southern states to argue 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.
Finally, because the history and original meaning of the EPC stood for insuring equality in laws of Due Process in state courts, made the EPC an improper vehicle for courts to use in forcing social, gender, age, etc., equality outside of the laws of protection for security of person before courts of law for crime. If it meant this than the adoption of the Fourteenth Amendment would have failed because Northern States would have, by all published accounts, refused to go along with anything more stringent than found in the Civil Rights Bill of 1866 which the court has long held was the rights the Fourteenth Amendment protected.
It should be remembered the only controversy sought to be addressed by inclusion of the Equal Protection clause was not general civil, police or municipal laws of the States but those laws by former rebel States under the administration of President Andrew Johnson that were administering criminal law (black codes) with different degrees of punishments depending on color of the accused along with different degree of rules (prohibition of black suspects to give evidence, be a witness, etc.). Blacks were also prohibited from seeking justice in courts to enforce contracts or protect real property ownership.