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Must the Federal Government Honor an "Equal Protection" Rule?

2013-0414 RGN Does the Constitution require the federal government to afford “equal protection of the laws?”

At first glance at the Constitution’s text, it would appear not. There is no general Equal Protection Clause in the Constitution applying to the federal government—although there are a lot of clauses requiring equal treatment in specific situations. The Equal Protection Clause in the Fourteenth Amendment is general in nature, but it applies explicitly only to state governments.

The Supreme Court nevertheless has held that the federal government must follow a general equal protection principle. In 1954, in Brown v. Board of Education, the Court ruled that maintaining segregated schools in the states violated the Equal Protection Clause of the Fourteenth Amendment. At the same time, in Bolling v. Sharpe, it further ruled that segregated schools in the District of Columbia violated the Fifth Amendment’s requirement that the federal government not deprive persons of “due process of law.”

In the Bolling case, the Court opined—with little explanation—that the Fifth Amendment Due Process Clause contained what some call a substantive “equal protection component.” The problem is that, as a matter of accurate legal history, the claim that the Fifth Amendment Due Process Clause contains a substantive “equal protection component” is jurisprudential nonsense.

Still, forcing students to attend racially segregated schools is grossly and obviously unjust—so much so that, despite the weakness of the Bolling “reasoning,” the Court has not seriously questioned the case for over 50 years now. In fact, “living constitution” advocates sometimes employ Bolling to attack those who believe in applying the Constitution’s original meaning. “If originalism would result in re-segregating D.C. schools,” they say, “then originalism just can’t be right.” (Interestingly enough, after decades of liberal policies, D.C. schools are still largely de facto segregated.)

Of course, in this attack the “living constitution” people are being unfair. Every honest method of interpretation sometimes results in outcomes we don’t like. No honest method of interpretation yields fair results every single time. If we required every method of interpretation to always reach the result we preferred, we’d never be able to adopt any method at all.

And yet now it turns out that the result (although not the reasons) in Bolling v. Sharpe may be correct as a matter of original meaning!

A new article by Gary Lawson, Guy Seidman, and me is entitled The Fiduciary Foundations of Federal Equal Protection. Professor Lawson, Professor Seidman, and I were three of the four co-authors of a book on the Necessary and Proper Clause. We differ in politics, but we are united in our interest in the background and meaning of the Constitution.

Anyway, the article explores the question of whether an “equal protection” principle pervades the original Constitution.  Here are the essentials:

*    The Constitution was designed to be a fiduciary document, interpreted according to fiduciary principles, like an agency agreement or a trust instrument. (A fiduciary is one who manages affairs for others, and the law subjects him to very high standards of conduct.)

*    In interpreting any fiduciary document, the Courts are supposed to apply certain background rules, unless the document says differently.

*    Among the standard background rules—existing both at the Founding and today—is that fiduciaries (in this case, federal officials) have duty of impartiality. This means they have an obligation not to treat people differently without reasonable cause.

*    In the area of education, mere skin color is not reasonable cause.

Speaking for myself, I’d like to add the following:

*    The original Constitution implicitly acknowledged that race might be a “reasonable cause,” because it recognized the existence of slavery. But the Thirteenth through Fifteenth Amendments changed the Constitution’s basic orientation in that regard.

*    Even if (without conceding) that there was “reasonable cause” for segregation laws when they were first widely enacted after the Civil War, the ensuing history wiped out that justification. That ensuing history showed that, in practice, segregation was merely part of a racial caste system used to insure that African Americans were oppressed and would remain oppressed. Segregation proved inherently inconsistent with federal officials’ obligation of impartiality.

I’m aware that there is a problem in applying fiduciary theory to the Constitution—just as there are problems in all methods of interpretation. The difficulty here is that imposing fiduciary duties on federal officials can invite judicial activism. But my primary goal in studying the Founding is to determine what the Constitution really is, not to pontificate on what it should be.

Rob Natelson