Balkinization  

Monday, November 05, 2007

Reponse to David Strauss on Originalism-- First Round

JB

Cross posted at University of Chicago Law School Faculty Blog

Like David Strauss, I’m delighted to be able to participate in this exchange on liberalism and originalism.

In his first post, David makes two criticisms of originalism. The first is that it is empty; it has no real content. The second is that it is illiberal; it has bad content. (Note that these two claims are at least potentially in tension with each other.)

David’s first point is that originalism doesn’t determine hard cases by itself. We do not disagree. All the other modalities are usually necessary to resolve these cases. Much of constitutional law involves what I would call (following Keith Whittington) constitutional construction-- fleshing out the constitutional text and principles through implementing rules and institutions. That construction is not limited to courts; the political branches also implement constitutional values all the time. And their implementations have path dependent effects on how we construe the Constitution later on. There is not one single way the Constitution-in-practice had to end up. Much depends on what each succeeding generation does with what they are bequeathed, what institutions they create, what precedents they set, and so on.

I think David is running together the question of original meaning with the question of how best to implement the Constitution. At least, that is what I think is going on with his discussion of levels of generality. From the standpoint of the meaning of the equal protection clause, the proper level of generality is the level that we find in the text itself. The text says “equal protection of the laws.” That is the proper level of generality. David asks why the proper level of generality for understanding the clause is not “racial equality” or “equality with respect to common law rights.” The reason is that the text does not say “racial equality” or “equality with respect to common law rights.” There are important historical reasons why it did not do so.

David’s concern about the proper level of generality makes sense only if you think that the clause must somehow be confined or limited to original expected applications. Then you have to engage in debates about how to characterize those expectations, broadly or narrowly. But I reject that view. Asking about levels of generality also makes sense if you believe that determining the original meaning of the clause will do most of the work of implementing it. But I also reject that view.

David wonders why I say that the principles underlying the Fourteenth Amendment ban class and caste legislation. I say this because these are principles at the same level of generality as the text and the history strongly suggests that these were key principles underlying the Fourteenth Amendment. These ideas come straight out of Jacksonian and abolitionist ideology. When Senator Jacob Howard, representing the Committee of Fifteen, introduces the Fourteenth Amendment in the Senate in May of 1866 he explains each clause and its function. When he gets to the Equal Protection and Due Process Clauses he says that they “abolish[] all class legislation in the States and do[] away with the injustice of subjecting one caste of persons to a code not applicable to another.”

How would we implement the equal protection clause? The answer is pretty much what you would expect. We would come up with doctrines that tried to articulate when laws were likely to unfairly single out groups for special burdens or benefits, or produce or maintain unjust social subordination. Our modern scrutiny doctrines attempt to do this. (So did the old police power jurisprudence of the Lochner era.). These doctrines don’t always do it well, but that is their point.

David and I agree that the class and caste legislation principles, by themselves, do not determine the scope of their own extension. But, not to put too fine a point on it, neither does the language of the Equal Protection Clause itself. Everything he says about these two principles could also be said about the words “equal protection of the laws.” Rather, we have to implement text and principles in doctrines, constructions and institutions. We have to build methods of applying these principles in practice. To do this, we use the various modalities of legal argument that are familiar to lawyers. When lawyers develop doctrine, they try to develop conceptual tools to implement text and principle and concretize them. Think of doctrines as heuristics. Our contemporary scrutiny rules are implementations of the Fourteenth Amendment’s text and principles, which sometimes work fairly well to promote these principles and sometimes do not work very well at all.

When I say that laws banning abortion violate the class legislation and caste legislation principle, that means that I think this is the best implementation of those principles in today’s world. In my article Abortion and Original Meaning I give fairly elaborate reasons for why that is so. My arguments don’t always track existing doctrine, but in implementing these principles in concrete settings I am trying to do what existing doctrine does. The key point, once again, is that doctrine isn’t the same thing as constitutional meaning. It implements meaning.

Thus, David’s claim that originalism by itself doesn’t resolve lots of controversies is not really much of an objection from my perspective. In fact, if David and I both wrote accounts of various constitutional questions involving the Constitution’s vague and abstract clauses, we would probably rely on similar materials, and the results might often look quite similar. The major difference perhaps, is that I would start by talking a bit about text and underlying principles before launching into the other modalities and explaining how they helped implement text and principle.

In fact, I think that starting with text and principle can be very enlightening in some cases. One recent example is Romer v. Evans. If you start with our standard doctrinal models, you have to twist yourself in knots to explain the result in Romer. But if you start with the assumption that these doctrines are designed to implement the Fourteenth Amendment’s ban on class and caste legislation, Romer makes much more sense. In fact, I would argue that the law at issue in Romer is a paradigmatic example (in our day, at least) of what the Reconstruction Republicans were getting at when they spoke of class legislation. Romer is a case that shows the limits of our current models of doctrine. But doctrine isn’t written in the sky. It’s a heuristic device for implementing and applying constitutional values. Doctrinal structures that implement the Fourteenth Amendment have been different before, and they will be different again.

So far, it does not look as if David and I disagree very much. What is the nature of our disagreement, then? I think it is this: David sees text and principles as not particularly helpful or important to constitutional law; for him all of the work (or most, anyway) is done through the common law process of reasoned argument and doctrinal elaboration. By contrast, I regard the purpose of common law elaboration as in the service of fleshing out and implementing text and principles. Why does this difference matter? I can think of three reasons.

First, if doctrine and common law development serve text and principle, and not the other way around, then text and principle are always available to critique present-day doctrines-- and encrustations of doctrine-- that are no longer reasonable implementations of text and principle and no longer serve their purpose. This is especially important for social and political movements, which are the key drivers of changes in constitutional thought. These movements press for change by calling on the Constitution’s text and principles as they understand them. Sometimes their arguments are lawyerly and doctrinal, but often times they are not. Thus, the centrality of text and principle to constitutional interpretation is important if you think that much constitutional interpretation goes on (and even should go on) outside of the courts that create and depend on the elaboration of systems of doctrine. In the long run, changes in doctrine respond to changes in societal understandings of constitutional values-- and not the other way around.

Second, David thinks that talk of text and principles obscures constitutional argument. Quite the contrary, I think it immensely clarifies it. It shows that we are always doing is trying to implement and build on a framework, and it is a framework we are always permitted to return to, restore and redeem if we think that years of doctrinal glosses have become unwieldy, overly formalistic, or have otherwise taken us in the wrong direction. This presents a very different picture from a system of common law development that David favors, because sometimes it is difficult to explain why we can reject some precedents we don’t like (Bowers) if we want to insist that others have to stay in place (Roe).

This is a particular problem for liberals today: The present generation of living constitutionalists have found themselves on the defensive against conservative social movement energies. Like most social movements before them, these conservative mobilizations have called for a return to the Constitution’s text and to the principles of the founding generation, even if their notions of what that entails are disputable. Faced with incessant demands for constitutional revolution, living constitutionalists have become today’s “conservatives”: they have resorted to arguing for preserving the status quo, and for respecting older precedents created in politically more liberal times. But earlier social and political movements helped produce the doctrinal changes they now defend; those movements would not have succeeded if courts had applied the same concept of precedent that liberals insist on today. Arguments for respecting precedent make the most sense when they are directed at persons who do not share your constitutional views, but in that case they are a modus vivendi, not an independent criterion of constitutional fidelity. The best argument for decisions living constitutionalists admire is not that they are settled precedents; it is that they are faithful implementations of the Constitution's textual commitments and underlying principles.

Third, I think that David’s dismissal of original meaning originalism as mere rhetoric proves too much. I don’t think he can give a good account of why the "hardwired" rules in the Constitution are binding on us as law today. The common law method by itself can’t explain the binding nature of the "hardwired" features of the Constitution– the fact that there are two Houses of Congress, and so on. My version of originalism can: it argues that the Constitution contains rules, standards, and principles. All of them are binding on us in the present; however, the latter two, because they are standards and principles, require fleshing out and implementation through doctrine, institutions, and statecraft.

In fact, my sense is that most progressives already are original meaning originalists with respect to the "hardwired" Constitution. They don’t assume that doctrinal elaboration or common law reasoning can increase the number of houses of Congress or the length of the President’s term. For most progressives, living constitutionalism is primarily focused on the vague and abstract clauses of the Constitution, like those in the Bill of Rights and the Fourteenth Amendment; they want to make sure that these clauses are not limited to the original expected application. I think that my version of originalism– rather than a common law theory like David's– better explains why this attitude makes sense.

David’s second major concern is that originalism leads to inappropriate hero worship of founding generations, and it imposes the values of 18th and 19th century dead white men on the very diverse and vibrant society in which we live today. This is no small matter. The Constitution’s legitimacy comes from our present ability to see it as responsive to our needs for governance, for justice, and for the protection of our rights. Why should “people who do not feel any affinity to American traditions” have the constitutional values of an alien past forced on them? There is no special reason, David insists, why “we owe it to the earlier generations to maintain some kind of continuity with them.”

For my part, I don’t understand why these concerns don’t also arise in a common law system of constitutional development of the sort that David favors, one that also relies on reasoned elaboration of existing traditions and precedents. Won’t that sort of model be equally alienating to persons “who do not feel affinity to American traditions?” And don’t common law conceptions of reasoned development also involve continuity with previous generations? I think that David may be worried that originalism too readily binds us to the concrete expectations of people living in “the late-18th or mid-19th century”– like their views about “gender roles.” But certainly precedents of the past (and even the recent past) are also inflected with the attitudes and values of the past. Moreover, this is a strange criticism to level at my version of originalism, because, as David himself notes, I don’t believe that originalism commits us to the original expected application of the adopters.

There is a deeper question at stake, however, that I think David is aiming at. The question is whether legitimacy depends merely on our present day satisfaction with the Constitution or whether it requires that we imagine ourselves as having some continuity with earlier generations; whether legitimacy requires Americans to imagine ourselves as part of the American people, existing over time, and engaged in a common constitutional project. David’s remarks (at least here) suggest no. I say yes.

In my second article, Original Meaning and Constitutional Redemption, I argue that the legitimacy of the Constitution depends on the public’s attachment to it. Attachment is not the same thing as consent. You consent to something you have a choice in; you become attached to something that you live in and feel you are a part of. The Constitution is legitimate if people from their different perspectives can reasonably believe that, understood in its best light, it is worthy of their respect. (Frank Michelman has developed this point in his work). That means either that they either believe that it currently adequately protects their rights and respects their values or that they have faith that, in time, it will come to do so.

That means, among other things, that the legitimacy of the Constitution depends on our belief in its redeem-ability, and this requires us to imagine the Constitution as a project that extends over time, which in turn requires that we see it as a joint project of many generations, a project that extends backward into the past and forward into the future. In addition, I argue that for the Constitution to be legitimate, it must not only function as what I call “basic law” and “higher law,” it must also be “our law.” The Constitution works as “our law” when we view it as our achievement and the product of our collective efforts as a people, which simultaneously involves a collective identification with those who came before us and with those who will come after us. I don’t think this is the quite the same thing as hero worship. It does, however, require some degree of attachment to and pride in the constitutional project as a whole and a faith in its future redemption.

As you may have guessed by now, this is not your grandfather’s originalism. For one thing, it is not bound by original expected applications; for another, it carries with it a different conception of legitimacy. I’ll be interested in what David has to say about the question of legitimacy in his preferred method of constitutional interpretation in our next go-round.

Comments:

Oh, joy: A debate on originalism between an opponent of originalism, and an originalist many originalists wouldn't recognize as one of their own. This is SO likely to advance understanding of the notion.

My own view of originalism: It isn't a mode of interpretation, it IS interpretation. It's just how you approach a text, (Be it a constitution or Corvette owners' manual.) if you have an open minded interest in what it actually means, rather than, (As is essentially the heart of non-originalist 'interpretation'.) a fixed determination to find something congenial whether or not it's there.

"The best argument for decisions living constitutionalists admire is not that they are settled precedents; it is that they are faithful implementations of the Constitution's textual commitments and underlying principles."

That's the rub: What if they're NOT?
 

This comment has been removed by the author.
 

"[T]he proper level of generality is the level that we find in the text itself."

Amen! If we'd change "text and principle" to "textually-expressed principle," I'd be happier, though.

"The text says 'equal protection of the laws.' That is the proper level of generality."

Right, but "protection of the laws" was used over and over--in treatises of the time, in Blackstone, and in Marbury--to refer to the remedial and enforcement functions of government, not to governmental benefits in general. The debates leading to the 1871 Civil Rights Act make very clear that "protection" was the key term in the clause: the EPC is a requirement that government provide protection from violence and a remedy for violations of rights. Representative Mercur: "[T]he great object to be accomplished, the great end to be reached, is 'protection.'" Especially in light of the allegiance-for-protection contractual tradition, I'd read the EPC as a requirement that the state protect (i.e., protect from violence, and supply remedies to) everyone bound to obey its decrees.

Howard's speech isn't so clear that the EPC is a generic antidiscrimination provision. He explicitly distinguishes the rights of persons and citizens, but when he discusses the anti-caste principle, he stresses the rights of citizens.

I'm working on a big long paper on this right now, but Maltz, Avins, Harrison, and TenBroeck say similar things. See here at 604.
 

Jack,

I think this discussion would be even better if you could provide some examples of settled cases that were not decided on originalist grounds as you define that term. I'm having trouble figuring out what your approach excludes, if anything.

Thanks. Gerard N. Magliocca
 

Assuming the Prof. Balkin defines "legitimacy" in a legal sense, I do not understand how mere "attachment" to the Constitution provides a sufficient legal basis for demanding compliance with the Constitution. "Attachment" sounds a little abstract to me. I know of no legal principle recognizing attachment as reason for complying with a legal instrument. (Of course, evidence of express, implied, or deduced consent to a rule does form the authoritative basis of different sources of international law, but Prof. Balkin rejects consent.)

May I suggest that what legally binds the American people (and aliens under U.S. jurisdiction) to the U.S. Constitions is the equitable and legal principle prohibiting unjust enrichment. Americans (and aliens) as a matter of law and equity must obey the Constitution because they have acquired benefits from other Americans who have complied with the Constitution. The law of nations -- which pre-dates the Constitution -- recognizes the unjust enrichment prohibition principle. Indeed, if the Constitution is a treaty, then the unjust enrichment prohibition principle (as part of the voluntary law of nations) provides the sufficient and relevant legal basis for continuity of constitutional obligations that is otherwise absent in the case of express consent by today's Americans who had no choice in deciding whether to ratify the Constitution/treaty in 1788.

Francisco Forrest Martin
 

The thing that recommends Prof. Balkin's text and principles originalism vis-a-vis the new originalists is that it takes seriously changes in American society/culture/mores; in other words, it is conversant w/ what we know from political science and other empirical disciplines. The new originalists do not; therefore it is hard to see their approach as anything more than a mildly interesting philosophical and/or linguistic exercise.

That said, I would also be interested to see, per Prof Magliocca, what est precedent would fall under the text and principles approach.
 

The debates leading to the 1871 Civil Rights Act make very clear that "protection" was the key term in the clause: the EPC is a requirement that government provide protection from violence and a remedy for violations of rights. Representative Mercur: "[T]he great object to be accomplished, the great end to be reached, is 'protection.'" Especially in light of the allegiance-for-protection contractual tradition, I'd read the EPC as a requirement that the state protect (i.e., protect from violence, and supply remedies to) everyone bound to obey its decrees.

Don't The Civil Rights Cases effectively negate this interpretation? After all, Harlan dissented expressly because he interpreted the EPC to require state protection of such rights as the use of accomodations on the public highways, public inns, places of public amusement, etc. 3 S. Ct. 18, 59-60.
 

Mark:

Here's the answer to your question (straight from the post):

My arguments don’t always track existing doctrine, but in implementing these principles in concrete settings I am trying to do what existing doctrine does. The key point, once again, is that doctrine isn’t the same thing as constitutional meaning. It implements meaning.
 

Con law is not my field, and this may be a lame joke/reference anyway. But the phrase "new originalists" reminds me of the line from "This is Spinal Tap" in which one of the band members explains that the band used to be called "The Originals," but then they discovered another band already had that name, so they changed it to "The New Originals."
 

Mark: "Don't The Civil Rights Cases effectively negate this interpretation?"

I don't think they do on their own, though the duty-to-protect view of equal protection was on its way out as soon as Slaughterhouse got rid of any significance for the privileges-or-immunities clause, and the EPC was expanded into a generic antidiscrimination clause to fill the gap. Yick Wo--"the equal protection of the laws is a pledge of the protection of equal laws"--was the key move.

The key point for the Civil Rights Cases was that they allowed federal intervention even if the states had met their constitutional duties perfectly. That's consistent with saying that states have affirmative constitutional duties to supply things like protection. The Civil Rights Cases allow that the Civil Rights Act of 1866 is constitutional--see 109 U.S. at 16--even though that Act imposes an affirmative obligation on states to supply to all citizens "full and equal benefit of all laws and proceedings for the security of persons and property" to the extent it is supplied to white citizens.

Harlan's dissent was based more on the citizenship declaration and the 13A than the equal protection clause. He wanted the states to enforce common-carrier rights, but didn't set out a purely duty-to-protect EPC in any sense that the majority rejected.
 

Gerard, here are two examples of where my model probably produces different results than current doctrine, even though it can accommodate much of current doctrine. The first is that I think the most of the Eleventh Amendment cases following Hans v. Louisiana are probably wrongly decided. I also think that the Second Amendment protects an individual right and that it applies to the states. (In addition, I think that the Civil Rights Cases and Slaughter-House Cases were incorrectly decided, but existing doctrine has largely worked around them.)
 

My arguments don’t always track existing doctrine, but in implementing these principles in concrete settings I am trying to do what existing doctrine does. The key point, once again, is that doctrine isn’t the same thing as constitutional meaning. It implements meaning.

I think that's right for Prof. Balkin. I was wondering about Chris's claim.

Speaking of which...

The key point for the Civil Rights Cases was that they allowed federal intervention even if the states had met their constitutional duties perfectly. That's consistent with saying that states have affirmative constitutional duties to supply things like protection.

Fair enough, up to a point. The problem is, The Civil Rights Cases substantially narrowed the substantive rights to which such protection was owed under the EPC. The modern court has circumvented this problem by, e.g., relying on the Commerce Clause (Heart of Atlanta). It's not the EPC doing the work, so in that sense I'm not sure your proposed interpretation is consistent with existing case authority.

That's not necessarily a bad thing for you. I understand you're proposing a method of interpretation, not an explanation of existing precedent. What it does do is suggest that the "right to protection" may not be as clear as you suggest (and as I wish it were).
 

Mark: "I'm not sure your proposed interpretation is consistent with existing case authority."

Have no doubt--it's not consistent! See, e.g., Yick Wo.

"[T]he 'right to protection' may not be as clear as you suggest (and as I wish it were)."

I don't see what the consistency of a duty-to-protect reading with subsequent judicial interpretation has to do with how clear the duty to protect is. My point is that the text, in its original context, expresses a duty to protect, not a generic right against discrimination. True, lots of other interpreters have disagreed. But you have to sift through the enormous number of uses of the term "protection of the laws" as a remedial/enforcement right, and the 1871 debates, and the material on the allegiance-for-protection contractual tradition, to see how clear the duty-to-protect reading is.
 

"May I suggest that what legally binds the American people (and aliens under U.S. jurisdiction) to the U.S. Constitions is the equitable and legal principle prohibiting unjust enrichment."

And I'd like to suggest that what binds officers of the government to the US Constitution is the fact that they swore oaths to uphold it in order to become such officers. Whatever views may be available to the common citizen regarding the binding nature of the Constitution, everybody in the Legislative, Executive, and Judicial branches has already pre-committed to regarding it as binding and legitimate.

It's become distressingly common to treat that oath as an empty formality, if it's even treated at all, but that reflects more on the sort of people comprising our political class today, than it does on the true significance of that oath.
 

"And I'd like to suggest that what binds officers of the government to the US Constitution is the fact that they swore oaths to uphold it in order to become such officers."

Amen!
 

I don't see what the consistency of a duty-to-protect reading with subsequent judicial interpretation has to do with how clear the duty to protect is. My point is that the text, in its original context, expresses a duty to protect, not a generic right against discrimination. True, lots of other interpreters have disagreed. But you have to sift through the enormous number of uses of the term "protection of the laws" as a remedial/enforcement right, and the 1871 debates, and the material on the allegiance-for-protection contractual tradition, to see how clear the duty-to-protect reading is.

An originalist (I'm not one) would respond that a decision in 1881 better reflects the actual original intent than our reading today. I'm just sayin'....

More substantively, though, I don't see how the "duty to protect" provides the necessary protection unless it's combined with certain substantive rights. That is, we'd also have to agree that the duty to protect extends to such things as, e.g., public accomodations. But that's precisely what the Civil Rights Cases denied and what subsequent courts have had to use other clauses (other than the EPC) to supply.
 

OK, I'm with you on the Civil Rights Cases and Slaughterhouse. (Let's leave the Second Amendment aside for now.) But why couldn't one say that the modern Eleventh Amendment cases follow your approach by going beyond the narrow original expected application (relating to diversity suits) to get at the broader principle underlying the provision (state sovereignty)? Of course, you might say that this is not the real principle behind the Eleventh Amendment, but would the contrary view be unreasonable?

I also wonder how Blaisdell fits into your story.
 

"An originalist (I'm not one) would respond that a decision in 1881 better reflects the actual original intent than our reading today. I'm just sayin'...."

Originalists are not, of course, committed to the claim that judicial bad faith started with the "Switch in time that saved Nine". All things being equal an older ruling is probably closer to original intent, but that's a highly rebutable presumption.
 

Mark: "An originalist (I'm not one) would respond that a decision in 1881 better reflects the actual original intent than our reading today. I'm just sayin'...."

I'm not sure what decision from 1881 you're talking about, but I get the idea. Yes, as Brett says, other things being equal, those closer to the enactment are better at assessing the sense expressed by constitutional language. It's defeasible, of course. Moreover, the no-improper-classification view of the EPC adopted in Yick Wo and some other relatively early cases (and which Balkin advocates above) is the dominant reading today! I want to go back to the view that prevailed in 1871, and which makes sense of the pre-14A usage of "protection of the laws" and the pre-14A allegiance-for-protection contractual tradition. Yick Wo & the other early cases don't consider those.

"I don't see how the 'duty to protect' provides the necessary protection unless it's combined with certain substantive rights."

I'm not sure what you mean by "necessary." Protection against violent assault is the core right, so a duty to protect correlates with a substantive right to life and bodily integrity. The "protection of the laws" is also the right to a remedy--it's like an open-courts provision.

"[W]e'd also have to agree that the duty to protect extends to such things as, e.g., public accomodations."

Not sure what you're getting at here. If we think the Civil Rights Cases were wrongly decided, and if we think, contrary to Harlan's dissent, that we can rely only on the Equal Protection Clause to sustain the 1875 Civil Rights Act, then we'd need to do that. But I think the privileges-or-immunities clause is the chief antidiscrimination provision in the 14A.

Gerard: "[W]hy couldn't one say that the modern Eleventh Amendment cases follow your approach by going beyond the narrow original expected application (relating to diversity suits) to get at the broader principle underlying the provision (state sovereignty)?"

I'm not sure what I think of the 11A cases--I think they're defensible, if at all, not strictly as interpretations of the 11A itself, but as applications of a pre-11A structural principle--but here's the answer I want Balkin to give: it's the text of the 11A, not just the original expected application, that talks about citizens from other states. Principles motivating a provision, but not expressed in the text, can be useful guides, but aren't dispositive--just like motivating original expected applications not expressed in the text.
 

In a general sense, given that the people writing the Constitution and it's amendments were attempting to communicate their intent to other people, who were trying to understand that intent, we should expect that original intent, original understanding, and text, will all converge on pretty much the same core meaning.

Were it otherwise, written communication would be an exercise in futility, after all.

This implies that these distinctions, for all their theoretical importance, will in most instances have little practical consequence.
 

But I think the privileges-or-immunities clause is the chief antidiscrimination provision in the 14A.

Ah, I think I now understand your point better. You're saying that (a) the P&I clause tells us the substantive rights which the Constitution protects (e.g., freedom from assault, freedom to use public accomodations, etc.), while (b) the EPC commands that such rights be protected equally for all. If I understood you here, then it makes perfect sense.

I'm not sure what decision from 1881 you're talking about

That was a typo. The Civil Rights Cases were decided in 1883.

In a general sense, given that the people writing the Constitution and it's amendments were attempting to communicate their intent to other people, who were trying to understand that intent, we should expect that original intent, original understanding, and text, will all converge on pretty much the same core meaning.

I think this overlooks the salient fact of political compromise. Oftentimes statutes and Constitutions have a particular wording precisely because people cannot agree and thus use words which each interprets his own way.
 

Mark: "You're saying that (a) the P&I clause tells us the substantive rights which the Constitution protects (e.g., freedom from assault, freedom to use public accomodations, etc.), while (b) the EPC commands that such rights be protected equally for all."

That's not quite right. The P-or-I clause guarantees the rights of citizens; I think it both (a) prevents second-class citizenship--that is, ensures that one group of people does not get an abridged version of the rights that generally are given to all other citizens--and (b) secures traditional rights--that is, prevents government from abridging the rights that generally have been given to citizens. The EPC, though--as Howard stressed in his speech of May 23, 1866--guarantees the rights of all persons, not just citizens. I think the EPC both (a) guarantees a substantive right to be protected against violent assault and theft, and (b) guarantees the right to a remedy when rights are violated. So the substantive right of an alien to be protected from violence is only an EPC right, not a P-or-I one. Hope that's clearer.
 

Chris, the problem I have with your formulation was raised in your first post, specifically this passage:

"Especially in light of the allegiance-for-protection contractual tradition, I'd read the EPC as a requirement that the state protect (i.e., protect from violence, and supply remedies to) everyone bound to obey its decrees.

Howard's speech isn't so clear that the EPC is a generic antidiscrimination provision. He explicitly distinguishes the rights of persons and citizens, but when he discusses the anti-caste principle, he stresses the rights of citizens."

What I don't see in this statement is any sense of what substantive rights the EPC protects (nor how we know, on originalist grounds, what those specific rights are). I thought maybe your reference to the P&I clause solved the problem, but now I'm confused when you say "I think the EPC both (a) guarantees a substantive right to be protected against violent assault and theft...."

That last quote seems inconsistent with the first, which stressed the remedy rather than the substance. Nor do I see how it is that the EPC, interpreted by an originalist, defines which substantive rights are protected.
 

Mark: "That last quote seems inconsistent with the first, which stressed the remedy rather than the substance."

Sorry I wasn't clear. I meant "protect from violence, and supply remedies" in the original passage to express the same two ideas I explain in the second one: "(a) ... a substantive right to be protected against violent assault and theft, and (b) ... the right to a remedy when rights are violated."

"What I don't see in this statement is any sense of what substantive rights the EPC protects (nor how we know, on originalist grounds, what those specific rights are)."

The right to be protected from physical violence--isn't that a pretty specific explanation? It's the right to have the police try to stop people from attacking me. The right to a remedy is perhaps more obscure, but it's got a long history from Marbury on down: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection."

The main way I find out what specific rights "protection of the laws" covers is to go back to the treatises from the 1860s and 1870s and see what they referred to using the phrase. There's a huge amount of material. If you've got a Making of Modern Law subscription, just do a search on "protection of the law" or "protection of the laws" before 1870 and you'll see what I mean--the pre-1866 Westlaw Allcases database will do too, but I've only slogged through the treatises. The second way I do it is to see what Congress referred to in 1871; I find their textual explanations for their interpretations of the EPC (e.g., here, Mercur's statement quoted above) quite compelling. There's over a thousand pages of good material. But as I say, I'm still working on my draft.
 

The right to be protected from physical violence--isn't that a pretty specific explanation?

Yes, but my question was why this one and not some other one. I think, though, that you answered that in your last paragraph.

All which goes to show the strengths and weaknesses of posting comments seriatim. I suspect that this issue could have been resolved in a minute or so of a face-to-face conversation, instead of taking a couple of days and hundreds of words. OTOH, without the internet, we'd never have had the conversation at all...
 

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In case anyone's still listening, my papers on the original sense of the Equal Protection Clause are now here and here.
 

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