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.