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 the 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 they placed subjects outside of the protection of due process laws.
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 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.