The Federalist Blog

“No State shall deny to any person within its jurisdiction the equal protection of the laws – not of its laws, but of the laws.” –Rep. John A. Bingham (December 20, 1870)

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 equal protection of the laws of due process.

It is important to understand that “Equal Protection of the Laws” and “Due Process of Law” speak of the same laws of protection. This fact was evident in the Fourteenth Amendments initial language that read:

The Congress shall have power to make laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

While there was no mention of “due process” in this initial Fourteenth Amendment draft, its author, Rep. John A. Bingham of Ohio, spoke exclusively of it applying to laws of due process. By spelling out both equal protection and due process in the final version of the Fourteenth Amendment, there was no wiggle room for former rebel States to argue organic acts to administer due process unequally was not the same as denying due process all together.

Rep. Bingham would go on to point out the words “Equal Protection” were already part of the existing Constitution 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 to deny anyone the equal protection of the laws (because laws of due process was a privilege or immunity of citizenship that States must recognize with citizens of other States):

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 had always been universally held due process of law was a privilege or immunity of U.S. citizenship but the problem was there was nothing to force former rebel States to recognize emancipated black citizens as citizens of the United States. This is why the Fourteenth Amendment defines who is a citizen upfront.

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.”

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. 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.

The ideal for a national 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 these were not criminal codes but rather municipal codes.

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 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 pronounced guilty.

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 these words really meant, any law, or any benefit, or any right 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.

Additionally, the proposed “Equal Rights Amendment” of 1972 that read, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” would have been unnecessary. Sen. Edward Kennedy reintroduced the amendment during the 110th Congress.

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 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.

And finally, it is important to note that it is the legislatures who write criminal codes (and the courts that administer those laws) who must recognize equality of all persons by enacting and enforcing only criminal laws and penalties that act equally on all who violate the law. The Equal Protection of the Laws only insures “equality” in the administration of justice and not social equality or equal benefits.

Related: California’s Same Sex Marriage Ruling Flawed