Too long, yet not long enough: attempting to defend an originalist equal protection in a blog post.

The originalistosphere has been in a tizzy the last few days about (that is, against) the notion that the federal government has an obligation to enact equal law. Much of this is in response to a Chemerinsky blog post about originalism.

As usual, I agree, in a limited way, with Chemerinsky. (Well, more accurately, this time I mostly just disagree with the people who are disagreeing with him. Nothing here bears on Chemerinsky’s original post.) Here, I’d like to sketch out a brief argument for an originalist-compatible obligation on the federal government to enact equal law. As I said in the title, this is way too long for a blog post, yet not nearly long enough to make this argument work. But, such is the academic-blogosphere.

First, what I’m not arguing. I’m not arguing that the Equal Protection Clause (EPC) of the Fourteenth Amendment applies, from an originalist standpoint, to the federal government. I think it probably doesn’t. Rather, I think that the EPC, much like the Bill of Rights, merely explicitly states a preexisting limitation on the legislative power; one that applied to the states as well as to the federal government all along.

Why should we think this? I take it as a given that the framers thought that they were bringing about at least two things when they enacted the constitution: 1) popular sovereignty, and 2) the rule of law. But both of those things require something like the equal protection of the laws. I’ll just talk about the rule of law here; time permitting, maybe I’ll write a second post about popular sovereignty.

I’ll sort of loosely gesture, by way of squeezing a complex argument into a blog post, at four propositions, that will amount to a cluster of ideas supporting an originalist equal treatment requirement: . Let’s pause for a second and review the cluster of ideas in play.

1) The framers were trying to create the rule of law;

2) The rule of law requires the law be general;

3) The idea of due process, which the framers applied to the feds from the get-go, has historically been intertwined with the generality ideal that the protections of law be extended to everyone; and

4) Constitutional doctrine has long recognized that the legislative power is the power to enact general laws.

The rule of law is the subject of most of my research. In it, I’ve argued—I like to think convincingly—that the idea of the rule of law incorporates the conventional demand that the law be general—that it apply to all on equal terms. This is a demand the framers directly recognized in the prohibition against bills of attainder. But the demand of generality cannot be, as I’ve shown, a formal requirement, something about the law not having proper names in it or the like. It turns out that kind of requirement is philosophically incoherent. Instead, it can only be understood as a demand to make laws that substantively treat all in the community as equals, that do not reflect the social subordination of some citizens.

So what does this have to do with the constitution? I would like to suggest that the framing generation could (I won’t say “did,” I’m not an expert in U.S. history, but it’s at least plausible) have seen the rule of law requirement of generality as an inherent restriction on the legislative power.

We see elements of the rule of law written directly into the constitution, in the form of the prohibition of ex post facto laws and bills of attainder, but most importantly in the due process clause. The first use of the term “due process of the law” that I’ve been able to find is in a statute of Edward III in 1354. (28 Edward III, cap. 3; Statutes of the Realm I, 345.) That statute reads in relevant part as follows:

That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.

This statute, note, doesn’t describe any particular process that counts as due process. Instead, the interesting part, the idea that surely must be the point, is that it specifies that all citizens are to be given the benefits of law: “of what Estate or Condition that he be.” The ideal of due process of law is put in opposition not just to arbitrary power, but also to social hierarchy, to the power of some in the community to dispossess others of lower rank without legal protections.

The text in question also followed an explicit reaffirmation of Magna Carta. The due process bit of Magna Carta, of course, is chapter 29 (39 in the original), which reads as follows:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

Here, a key but often neglected idea is built into the “Freeman,” liber homo in the original Latin. This is primarily a status term; we can understand liber homo to mean “citizen” as opposed to slave or serf (I’m working on a rule of law book as we speak, which will have an England chapter giving the evidence for this proposition in detail, no space for it here). Again, we can understand chapter 29 as in large part an expansion of the entitlement to the protections of law.

These points illustrate the idea that the notion of due process of law goes together with the notion of universal protection. It’s an ideal of equality: through history, some people have always gotten the protections of law; the ideal of due process is that everyone gets the protection of law. (Waldron’s 2009 Tanner Lectures are also informative on this subject.)

The idea of due process also helps draw the boundaries around the scope of legislative power. Consider Justice Holmes’s opinion for the Court in Bi-Metallic. Holmes distinguished Londoner v. Denver and explained that the plaintiff was not entitled to procedural due process protections for a tax assessment, just because the enactment that led to the assessment was a general law, applying to the whole community, rather than an enactment applying to “a relatively small number of persons… who were exceptionally affected, in each case upon individual grounds.” Bi-Metallic creates a due-process line between the legislative power to enact general laws, which does not require procedural due process, and the targeting of individual people or small groups, by the legislature or otherwise, which does (see also this really great Chapman & McConnell article, Due Process as Separation of Powers, on this point).

This conception of the proper scope of legislative power persists to contemporary law; it shows up most interestingly in Rehnquist’s interpretation of the takings clause. His dissent in Penn Central argues, I think correctly, that a taking—as opposed to an ordinary legislative enactment—is when the legislature imposes the cost of some public good on one guy, or a small group of people, rather than on the community as a whole.

So the constitution contains, even for an originalist, the notion that legislatures may only enact general law. And that notion necessarily leads to a requirement of equal treatment. It follows—after, I admit, lots and lots more argument (but look how long this post already is!)—that the original meaning of the constitution can include a demand of equal treatment by the federal government.

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18 Responses

  1. Joe says:

    I think at the Volokh Conspiracy post that Mark Field provided a good argument that somewhat parallels this one, including quotes. He also responds to critics.

  2. Brett Bellmore says:

    Perhaps relevant: James Madison to Andrew Stevenson, on the general welfare clause

    I believe the idea of the “general welfare” is somewhat related to what you’re suggesting: That the legislature is barred from pursuing the specific welfare of particular groups and individuals, but must restrict itself to measures intended to advance everyone’s welfare. This implies equality under the law, as a measure treating different people differently would not be attending to the general welfare, but only the welfare of those advantaged.

  3. Shag from Brookline says:

    Perhaps Brett’s point is that back in Madison’s day, the general welfare clause could not benefit welfare legislation for slaves and that post-Recconstruction Amendments the same applies to former slaves and their succeeding generations subjected to Jim Crow despite the enforcement clauses of such Amendments. Of course, historically equality has seesawed over the years. But those changing demographics cause concern for Brett and his ilk who may one day be considered “those advantaged.”

  4. Brett Bellmore says:

    Shag, I appreciate your persistance in attempting to paint me as some kind of Bull Connor, but I’ve never been a member of the DNC.

    Can’t you leave off for a moment, and seriously discuss the topic?

  5. Shag from Brookline says:

    I have mad no attempt ” … to paint [Brett] as some kind of Bull Connor, ….” I was born in 1930 and recall well Bull Connor’s role as a government official in the 1950s-60s challenging civil right activities that included violence. No, Brett, is not a Bull Connor. A bull Connor could not survive in this day and age. I have at other venues described Brett, a self-described “anarcho-libertarian,” as physically harmless. Brett is not a government official. While Brett is a Second Amendment absolutist, he is harmless in exercising his First Amendment rights, as am I. Brett’s racial views are all over the blogosphere for all, including NSA, to check out with a little Googling. Brett’s goal is clearly not to discuss the topics of blogs he comments on. Rather, Brett’s goal is to express his views, whether relevant or not. I merely point to Brett’s vitriolic views. In #3 I made reference to what I considered Brett’s “point” in his #2 which diverged from the post. Brett’s response is Bull Connor painting. But that’s bull. Brett is a harmless pussycat with an agenda reflecting that of Sen. Lindsey Graham (Cracker, SCar) during the 2012 presidential election that there are not enough angry white men out there to defeat the first African American President’s bid for reelection. So when Brett gets serious, I’ll get serious with the topic at hand that Brett evades with his agenda. Perhaps Brett chose his I’m-Not-Bull Connor response to address those few who may be intimidated by the photo accompanying his comments at Balkinization. (I’m not one of those few as the depiction is more cartoonish than intimidating.)

  6. Joe says:

    I think Brett’s “general welfare” reference does reflect one of the aspects of the federal Constitution that suggests there is an equal protection component that applies to the federal government. In practice, the government is going to in specific cases have programs that assist specific groups (e.g., vets), so that can’t be taken too strictly as a set rule. But, the general idea is worth noting.

  7. Shag from Brookline says:

    Is it in the general welfare interests of America to provide for the relatively limited number of military veterans who have served in America’s defense (in comparison to the large number who have not so served)? I think so. And there are many more examples of how the general welfare is served by adopting programs for specific groups. This advances everyone’s welfare, except perhaps an aanarcho-libertarian.

  8. Brett Bellmore says:

    Let’s say that the federal government defends the territory of the US in a war. That’s certainly something that would be for the “general welfare”, even though you might end up paying the soldiers and munitions suppliers.

    OTOH, just giving stuff to some specific group for the purpose of benefiting just them, rather than paying them for helping everybody? Not general welfare.

  9. Joe says:

    “just giving stuff to some specific group for the purpose of benefiting just them”

    For instance, a subsidiary to a growing industry, let’s say carriages, could be said quite reasonably to be important for the general welfare since it provides a necessary resource and promotes interstate commerce. This is a general benefit.

    The term suggests some concern for equal respect (the Preamble is for the welfare of society generally) but it is so general of a term that its limits are unclear in practice. A benefit to one group (vets or whatever) very well might be for a general end. It’s a factual thing.

  10. Brett Bellmore says:

    I think you’re diving down from the level of actual generality, (Establish the rule of law, prevent invasions, institute a patent and postal system, and so forth.) to something more specific, a level where sophistry abounds. But I think this misses the point, which is that “general welfare” is a limitation on the enumerated powers, not an addition to them. So, lacking a power to do something, the claim that doing it would be for the general welfare wouldn’t get you anywhere.

  11. Joe says:

    The term “general welfare” is broad enough that calling it a “limitation” is debatable — the Constitution as a whole expanded federal power significantly. It is not “sophistry” to cite examples of this.

  12. Brett Bellmore says:

    The Constitution expanded federal power considerably over the Articles of Confederation. Which is not to say, without limit.

  13. Shag from Brookline says:

    And Amendments to the Constitution, including especially the 13th, 14th and 15th, expanded federal power considerably over the the original Constitution, especially the enforcement clauses of those Amendments. Perhaps Brett believes that the “General Welfare” provision trumps or limits these enforcement clauses. Brett apparently doesn’t believe in “Wholeisticly” reading the Constitution.

  14. Brett Bellmore says:

    Perhaps I believe they never got around to amending the interstate commerce clause to allow regulating things that are neither commerce nor genuinely interstate. Or a lot of the other expansions of power which have been claimed in the last 80 years.

  15. Joe says:

    It’s not debated that there are limits to the Constitution. OTOH, the term “general” welfare is so vague and open-ended that it simply isn’t much of one except as a guideline for the political processes. There are as noted lots of cases where even programs that help specific groups will also benefit the general welfare. There are exceptions, of course, but given the scope of things, they are not that notable generally speaking.

  16. Brett Bellmore says:

    I’m not the first to observe that everything that gets in the way of claims of further federal power ultimately ends up being viewed as “vague”.

  17. Shag from Brookline says:

    The original Constitution was “vague” on slavery, not using that word, “slave.” or similar words. But the practice of slavery was not vague. Brett continues to suffer from chronic “Wick-burn” for which there is no salve. Perhaps Brett believes that the sale of slaves across state lines pre-Civil War Amendments was not commerce.

  18. Joe says:

    The term “general welfare” is vague, so what does #16 get you? It doesn’t change what I said. The term itself, unlike various other specific demands (such as the rule on imports applied in Art. I, sec. 10, cl. 2), is so general in nature that as a check on federal power as compared to a means to expand it (with the various limits found in the Constitution), it is rather lacking.