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 on the grounds it placed subjects 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 that afford protection shall be equal and not those laws that provide benefits, privileges or treatment. 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 established law to take ones life, imprison them (liberty of person) or confiscate their property.
Rep. Bingham explained why the “Equal Protection of the Laws” meant the same thing as Due Process when he explained the Fifth Amendment’s words “no person” was not the same as the Magna Charta’s “no freemen”, and thus, was the federal Constitution’s “Equal Protection of the Laws” clause.
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.
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.
Since the Equal protection of the Laws was inserted to insure that Due Process could not be unequally administered, was never the proper vehicle for courts to use to force social equality in public State laws.