Historical Meaning Behind ‘Equal Protection of the Laws’

by P.A. Madison on February 6th, 2009

Summary: The Fourteenth Amendments Equal Protection Clause assures equality in proceedings and laws for security of person before courts of law, not under general laws that may make distinctions in race, sex, age, gender preferences, etc. Hence, why it was introduced before the House, Senate and by its drafter, Rep. John A. Bingham, as limited to “offenders” of law.

Justice Scalia speaking of the Fourteenth Amendments Equal Protection Clause 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 often used in England as synonymous with “impartial administration of justice.” Bills of Pains and Penalties were objected to because subjects were placed outside of the protection of laws of due process.

This is why the court in Slaughterhouse Cases (1872) held States could only violate the clause through “denial of equal justice in its courts.”

Textually the words only command that laws of “protection” shall be equal and not that benefits, privileges or treatment shall be extended equally to everyone by enacted law. This limits its operation to laws of due process – or law of the land – since those are the laws for personal “protection” against arbitrary acts outside of written law to take ones life, imprison them (liberty of person) or confiscate their property.

Because the “Equal Protection of the Laws” and “Due Process of Law” speak of the same laws of protection, explains why Rep. Bingham insisted the clause already existed in the words “no person” and not the Magna Charta’s “freemen” shall be denied due process of the laws under the Fifth Amendment. In his last major speech on the Fourteenth Amendment prior to it being submitted to the States for approval, pointed out no State ever had a right to deny anyone the equal protection of the laws (because guarantees of due process was a benefit derived from citizenship and universally held to be a privilege or immunity that followed a citizen of some State going into another State):

No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal 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.

It is no wonder the United States Supreme Court does indeed recognize a federal “Equal Protection of the Laws” through the Due Process Clause of the Fifth Amendment.

Rep. Bingham would remind 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.” Bingham in 1871 emphasizing this fact:

The gentleman inquires, what does this [equal protection] mean?

The gentleman, if he had consulted Magna Charta, which England’s brilliant and profound constitutional historian, [Henry] Hallam, has well said is the keystone of English liberty, fortieth, these words: “We will sell to no man, we will not deny or delay to any man right or Justice.” After all the past, is it needful to say what it means to deny right or justice to any man?

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 the law of the land itself. This makes it easy to understand what protection of the laws the phrase speaks of: Equality of all people before the law where people receive the same protections of law against arbitrary injustice regardless of how rich, poor or color of skin.

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.” This insured all persons received the equal protection of the laws in the administration of justice on a federal level.

Additionally, before there was a Union of States English judges were required by oath to swear “to do equal law and right to all the king’s subjects, rich and poor.”

The ideal behind the Equal Protection Clause can be said to have begun with President Andrew Johnson’s declaration in his December 1865 message to Congress that 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 since that wasn’t the case under criminal “black codes.”

Black codes of 1865-1866 were “criminal codes” found in former rebel States that singled out people of color for crime and unequal punishments. When former rebel States abolished their “black codes” in order to conform with Fourteenth Amendment requirements, laws of miscegenation and segregation remained because such laws made no distinction of race in the protection of life, liberty or property.

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 was his intention to codify under the new Fourteenth Amendment. Under the Fourteenth Amendment the following protections 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.

It is no wonder why Senator Howard would introduce 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) when introducing the amendment to the House made clear it was aimed solely at criminal black codes:

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 the laws of due process in the administration of justice before courts of law. 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 other words, it is those who have violated some criminal code (“offender”) whose life, liberty or property is at risk before the law, who are entitled to the “Equal Protection of the Laws” before being declared guilty and sentenced to penalties of law.

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., law of the land (due process). If the clause addressed any law, right or any privilege extended by some 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 (or even sex) would have easily been found inherently unequal.

Because it was widely understood and uncontroversial that the Equal Protection of the Laws was not applicable to political rights, made it odd for the Warren Court in Harper v. Virginia (1966) to hold “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” States had been doing just that since their beginnings.

In fact, Bingham and Howard argued that was a proper method for protecting the ballot box. Said Sen. Howard in 1870:

[S]uppose the State affixes as a qualification of a voter the necessity of being the owner of, say, two hundred dollars’ worth of property. Suppose the State should alter its Constitution so as to require from the colored man the possession in his own right of two hundred dollars’ worth of property, which is the old rule in the State of New York, does the Senator from Nevada hold it to be in the power of Congress to alter in any way by congressional enactment that qualification of the State?

No, sir. Why not? Because the qualification does not relate to color, race, or slavery, but only to property, the subjects being as distinct from each other as the sun is from the moon. No, sir; Congress in such a case as that would have no authority whatever to interfere to correct the evil…The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them…

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.

Rep. Bingham found no legal objection to his own States segregation policies post Fourteenth Amendment, but found criminal laws that discriminated on the basis of race in punishment very objectionable. Tennessee was well known for its separate schools for white and black children by an 1866 enacted law, yet Bingham argued Tennessee laws fully conformed with the Fourteenth Amendment.

This is one of the reasons why it is silly to argue the Equal Protection clause was intended to force social equality in public laws. The distinction between “equal protection” and “equal rights” should now be clear: Equal protection is the equal administration of those laws of personal protection we call due process.

Related: California’s Same Sex Marriage Ruling Flawed

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13 Responses | Leave a Comment
  1. Tim L. says:

    Great point about the distinction between “equal protection” and “equal rights.” The clause never commanded a state to provide equal rights in law, only equal justice.

  2. Another Mike says:

    Good article that explains the concept of equal protection very nicely and demonstrates the courts current judicial precedent is horribly wrong and in need of a new factual reevaluation so that written law can once again prevail.

  3. Jamie says:

    Just to note the court does in fact acknowledges a federal equal protection clause under the 5A. Why they think equal protection under the 14A operates differently is surprising since they are both based on the same clause and speak of the same protection.

  4. Craig says:

    I’m guess I’m not surprised to find that differing opinions are unwelcome. Forgive me, I thought substantive debate had intrinsic value….

  5. Ron H. says:

    Good point about the 15th amendment there, and I think it pretty much proves the equal protection of the laws means laws of due process since “protection” is the purpose of due process. I think Bingham should had used “under the protection of law” instead.

  6. Anonymous says:

    i am reserching for we the people and this has to do with my question it helped a lot thanks for posting

  7. Illuminator says:

    If the commerce clause can be used to justify regulation within states, it can also be used to justify regulation within foreign nations.

  8. Sgt. Matt says:

    I never realized congress had defined the meaning of the equal protection clause to proceedings of law. Thanks for pointing that out!

  9. mike hernan says:

    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.

  10. Hacksaw says:

    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.

  11. JimAZtec says:

    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.

  12. Craig says:

    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.

  13. Mike says:

    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.

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