Equal Protection

Arguing that the word “person” in the Fourteenth Amendment did not include prenatal existence in 1868.

Arguing that the Equal Protection Clause guarantees nondiscriminatory law and nondiscriminatory enforcement of laws that protect life, liberty, and property. Tracing the original meaning of the Clause through Anglo-American history. Arguing that a duty to protect is present throughout that history, especially within anti-slavery circles. Pinpointing that the original purpose of the Clause was to prevent subjugation of one group of people by another.

Analyzing the original public meaning of the Equal Protection Clause. Arguing that the last three words, “of the laws,” are often overlooked but are really important because the laws include those of the state and Congress. Also contending that the ordering of the words matters. Analyzing early judicial decisions interpreting the Clause, which largely reveal notions of equal enforcement for state and federal laws.

Arguing that the original meaning of the Equal Protection Clause supports the marriage equality claims in Obergefell. Arguing that “equal protection” means the state can’t create a caste regime where a whole class of persons are outside the Equal Protection of the laws. Discussing the Jacksonian opposition to “class legislation” and their endorsement of Equal Protection. Arguing that both informed state constitution and that the original meaning of the Equal Protection Clause permits discrimination when founded on an important public policy.

Arguing that religion should be protected under the Equal Protection Clause. Arguing that the Fourteenth Amendment forbids all discrimination based on religion, just as it forbids race-based classification. Focusing on the Equal Protection Clause’s anti-caste and class-animating principle, arguing that its scope is broad. Concluding that the Clause should ban workplace or educational environments hostile to religion.

Arguing that the Equal Protection Clause is not a generic anti-discrimination provision. Examining evidence from the 1866 Congressional debates and the language of the Clause in its historical setting to conclude that the State must provide protection of the laws equally to those subject to its laws. Contending further that viewing the Equal Protection Clause as a “duty-to-protect” provision would have important ramifications today.

Arguing that Equal Protection Clause jurisprudence focused on classifications misconstrues the original understanding of the Clause. Defending the “duty-to-protect” view which imposes a duty on each state to protect persons and property within it from violence and to ensure equal access to the courts. Also addressing sources posing counterarguments, most notably arguments made by Senator Morton in 1872.

Arguing that the Constitution assumes a normative theory that groups within politics are pluralistic. Examining the documentary history and original purpose of the Equal Protection Clause as a plurality theory of groups. Noting that history shows that the Clause was meant to prevent “class legislation” and three “corollaries that help assure conditions conducive to a flourishing democratic pluralism”: open deliberation, a presumption of minority protection, and neutrality.

Looking to the framers’ intent to argue that the primary function of the Equal Protection Clause was to guarantee the right to “protection of the laws” to all people. Arguing against the notion that the Clause was intended to outlaw discrimination generally against a class of people. Discussing the historical antecedent of the right to protection and its reappearance in debates over the Fourteenth Amendment during the 39th Congress.

Analyzing the original meaning of the Equal Protection Clause. Analyzing two proposals by Republicans bearing on Equal Protection: John Bingham’s 1866 equal rights amendment and James Blaine’s 1866 amendment. Also discussing the origins of the phrases “all men are created equal” and “equal protection of the laws” in tandem, as well as early uses of the phrase “equality before the law.”

Discussing the word “protection” (contra other scholarly work focused on “equal”). Contending that ignoring the word protection resulted in the Supreme Court’s classification test. Discussing historical notions of protection and primary source evidence from the 39th Congress.