Balkinization  

Wednesday, November 16, 2011

Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment

David Gans

There are few areas of the law as deeply polarizing and emotionally heated as the application of the Constitution’s guarantee to all persons of the equal protection of the laws. What is lost – all too often – in this heated and polarized discussion is the text and history of the Constitution’s Equal Protection Clause itself, along with the full sweep of our constitutional history: the principle of equality first stated in the Declaration of Independence, perfected in the Equal Protection Clause of the Fourteenth Amendment, and further illuminated in the Nineteenth Amendment and other Amendments.

That’s what makes a new study by the Constitutional Accountability Center entitled Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment required reading. Perfecting the Declaration, the fourth in CAC’s Text and Narrative Series, tells the story of how the American people redeemed the Constitution from the sin of slavery and rewrote the Constitution to guarantee equality to all persons, bringing the Constitution back in line with the principle of equality laid out in the Declaration. In the Equal Protection Clause, “We the People” perfected the Declaration by writing into the Constitution’s text that all “person[s]” are equal, not just that “all men are created equal.” The story of this constitutional transformation is essential to the Supreme Court’s many landmark rulings honoring the Constitution’s promise of equality for all persons, including Brown v. Board of Education, Reed v. Reed, whose 40th anniversary is being celebrated this week at a star-studded panel in Washington, D.C., and Romer v. Evans. As important, this story is critical to on-going efforts to persuade courts and, ultimately, if necessary, the Supreme Court, to take the next step and strike down state laws that deny gay men and lesbians the right to marry the person of their choice.

On the right, the idea that the Constitution protects the equality of all persons is under attack. Justice Antonin Scalia – the right’s patron saint of originalism – has argued that women, as well as gay men and lesbians, are outside the scope of the Equal Protection Clause, claiming that they were not meant to be protected from discrimination. In his typical caustic fashion, Justice Scalia has pilloried the Court’s rulings applying the text to strike down discrimination based on gender and sexual orientation as “modern inventions” that have no basis in the Constitution’s text and history. Justice Scalia is wrong. As the text confirms, the protection of the Equal Protection Clause is universal, excluding no one.

Proposed in 1866 and ratified in 1868, the Equal Protection Clause prohibits a state from “denying to any person within its jurisdiction the equal protection of the laws.” As Perfecting showcases, the debates over passage and ratification of this universal guarantee of equality confirm what the text makes clear: that equality under the law and equality of rights apply broadly to any and all persons within the United States. The framers of the Amendment were concerned that states were flagrantly violating the equal rights of a number of different groups of persons. Newly freed slaves in the South, their white Unionist allies, and immigrants in the West all faced persistent discrimination and lack of legal protection. To stop these abuses and prevent future ones, the framers wrote the Equal Protection Clause in broad, universal language designed to prohibit invidious discrimination and secure equal rights to all persons. The text of the Clause thus protects all persons, whether African American or white, man or woman, gay, lesbian, or heterosexual, native-born or immigrant.

The framers of the Fourteenth Amendment are both heroes and villains in the story of our constitutional progression ever closer to the ideal of equality first stated in the Declaration of Independence. While the framers heroically fought for the broadest textual protection of equality in America’s constitutional history, these men (and they were all men), left untouched a number of odious forms of discrimination that today are universally recognized as blatant forms of inequality. In 1866, the framers tolerated racial discrimination in voting, did not challenge miscegenation and segregation laws, and effectively wrote into the text of Section 2 of the Amendment an approval of laws that denied women the right to vote. While the framers would launch a concerted attack on segregation in the 1870s, throughout Reconstruction they were not prepared to live up to the text’s universal guarantee of equality when it came to women’s equality.

Happily, the constitutional struggle for equality did not end in 1868. In later Amendments, including the Fifteenth Amendment and the Nineteenth Amendment, “We the People” strengthened our charter’s command of equality, while rejecting the notion that women are second-class citizens and that the right to vote is less than a fundamental right. Most important, the Nineteenth Amendment repealed the portions of Section 2 of the Fourteenth Amendment that had allowed discrimination against women in voting rights. In ratifying the Nineteenth Amendment, “We the People” determined that women must be treated as full and equal citizens with the same right to vote and participate in the public sphere as men, guaranteeing women what Justice Ruth Bader Ginsburg has called “full citizenship stature.” With the ratification of the Nineteenth Amendment, the broad text of the Equal Protection Clause stands alone, free from the stain created by Section 2. In this way, the full sweep of our constitutional history points to a broad reading of the text’s command of equality for all persons.

A plain reading of our Constitution’s text and history not only answers Justice Scalia’s cramped reading of the Equal Protection Clause, it is also central to the constitutional arguments for marriage equality made, for example, by Ted Olson and David Boies in the Perry litigation, which is currently awaiting a ruling by the California Supreme Court on the standing of the only remaining defendants, the Proposition 8 ballot proponents. Should the Ninth Circuit reach the merits of Perry’s challenge, it should strike down Proposition 8. State laws that deny gay men and lesbians the right to marry the person of their choosing run afoul of the Fourteenth Amendment’s central command of equality under the law and equality of rights, reflected in both the text and its history. By depriving gay men and lesbians of one of our most cherished fundamental rights, these state laws treat them as second-class, inferior persons, unworthy of having their loving relationships recognized. The text of the Fourteenth Amendment secures the same rights and the same protection of the law to all persons, including fundamental rights such as the right to marry.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, and the author of Perfecting the Declaration. This post is cross-posted at Text and History.

Comments:

One can argue that the law doesn’t give “equal protection” to a gay person because it doesn’t allow him or her to marry someone of the same sex. One can argue that it does give equal protection to a gay person because it allows him or her the same freedom to marry someone of the opposite sex as a straight person. Or one could argue that any legal recognition of marriage violates equal protection by treating married and unmarried people differently.

The text of the equal protection clause doesn’t provide a basis for choosing among these competing theories. The only way to distinguish them is in the context of a normative framework. Either we are going to use the normative framework of the framers and ratifiers of the 14th amendment, or we are going to use someone else’s. Disparaging the framers of the 14th amendment as (partial) villains is a clever way of driving the conclusion that it should be someone else who, I am guessing, will turn out to be you. You are all hero and no villain?
 

Jack Balkin argues the "normative framework" of the framers will provide a means to equal production results such as abortion rights.

In this respect, the framers are not "villains," but individuals who put in place a means to provide changing specific understanding of the terms of the 14a that went beyond their immediate understanding of homosexuality, gender and so forth.

I'd note one need not be "gay" to marry a person of the same sex in NY, MA, NH, IA, DC or CT or be "straight" to marry a person of the opposite sex.

The "hero" in the writer's discussion is not himself particularly, but the people themselves. It is they who ultimately determine what is the proper framework. The people over the years deemed it to include sex equality in various forms and now sexual orientation.

Jack Balkin also has written how this is reflected by changing membership of the courts, membership in place by elected officials nominating and confirming judges. I'm unsure therefore why the matter needs to be so personal, as if the writer is just self-aggrandizing here.
 

One can argue that the law doesn’t give “equal protection” to a gay person because it doesn’t allow him or her to marry someone of the same sex. One can argue that it does give equal protection to a gay person because it allows him or her the same freedom to marry someone of the opposite sex as a straight person. Or one could argue that any legal recognition of marriage violates equal protection by treating married and unmarried people differently.

In addition to what Joe said, your 3 examples are not of equal (heh) merit. The middle one is, in fact, frivolous. Looks to me as if a normative framework has been applied out of order, not to choose among the alternatives, but to define them. No theory of interpretation allows for that.
 

This post is also cross-posted on the ACSBlog (American Constitution Society), which has just finished a set of online brief "classes" patterned on a book expressing the basic concept, "Keeping Faith with the Constitution." The original book also can be downloaded, a chapter on free speech added in an updated edition.

http://www.acslaw.org/constitution-curriculum

Other material at the website of this liberal answer to the Federalist Society, including issue briefs and videos on various topics, might be of interest.
 

Mark- the second option is certainly not frivolous based on the text of the equal protection clause. It may be frivolous based on your normative perspective, under which what is most important is that a person be able to marry whomever he or she chooses (subject to certain limitations that seem reasonable to you, such as age, number, mental capacity, whatever). Your perspective is certainly not that of the framers, who would have found the notion of same-sex marriage to be frivolous.

Joe's suggestion that these decisions be made by the people is, I am pretty sure, the legal regime that would exist if we leave the equal protection clause out of the issue entirely.
 

the second option is certainly not frivolous based on the text of the equal protection clause.

Then you haven't thought it through.

It may be frivolous based on your normative perspective

Projection is rarely convincing as an argument, though it seems very popular on the Right these days.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Sorry for the deletions.

"Joe's suggestion that these decisions be made by the people is, I am pretty sure, the legal regime that would exist if we leave the equal protection clause out of the issue entirely."

I'm not "suggesting" a possible route here. That is should "be." I'm arguing what is happening, or in particular, what the argument being made entails.

Also, I'm arguing that the people are the ones giving specific meaning to the text. "The decisions" is what the text means. So, how can we just leave it out of the equation?

Of course, the people don't directly get to govern or interpret the law most of the time. They do so through agents. Still, the agents are chosen by them directly or indirectly and this plus the fact that the people who decide are guided by current understandings (even originalists) underline the power of popular constitutionalism.
 

The only way you can apply the EPC to compel state recognition of same sex marriage is to discard the traditional requirement of similar situation. In that case, marriage loses any meaning apart from being a contractual relationship for government benefits equally available to any parties in any combination.

With an EPC of that breadth, the progressive income tax system and all means testing limitations on access to government benefits should be likewise unconstitutional. And so on, and so on.
 

Is our yodeler's:

"With an EPC of that breadth, the progressive income tax system and all means testing limitations on access to government benefits should be likewise unconstitutional. And so on, and so on."

directed at the federal level or solely at the states under the 14th Amendment? And perhaps his mere echoing "And so on, and so on" can be detailed.
 

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