The 14th Amendment Equality Requirement Does Not Apply to the Federal Government

Over at the Originalism Blog, Mike Ramsey has a great critique of Erwin Chemerinsky’s attack on Originalism. As Mike points out, Chemerinsky’s attack includes some very weak points, including the claim that the Constitution’s use of the term “he” means that under originalism women could not serve in office. Alas, attacks on originalism often engage in bad originalism.

The strongest Chemerinsky point that Mike discusses is the former’s claim that under originalism, Brown v. Board of Education was wrongly decided:

Chemerinsky claims:

The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under Justice Scalia’s theory of originalism, Brown v. Board of Education was wrongly decided.

Not so, according to Michael McConnell. The Reconstruction Congress did not pass a statute segregating DC schools; the DC segregation was done at the local administrative level. And, as Professor McConnell further shows, there are good originalist arguments in favor of Brown’s result. Not every originalist accepts them, and of course Dean Chemerinsky isn’t obliged to, but it is not obvious that Brown is inconsistent with originalism (and in any event the statute he relies on as his sole support didn’t exist).

Without discussing the entire Brown question, let me add an additional point. Even if the Congress had passed a statute allowing or requiring segregation of the schools in Washington, D.C., that does not necessarily tell us what the meaning of the 14th Amendment was. The equality requirement of the Amendment – whether derived from the Equal Protection Clause or the Privileges or Immunities Clause – did not apply to the federal government. Thus, the federal government’s actions cannot be assumed to reflect its views of the meaning of the 14th Amendment.

If one relied on the legislation that Congress passed at the time of the 14th Amendment to inform its meaning, one gets a problematic Amendment. Congress both passes some laws that benefit minorities and other laws that harm them. It is hard to reconcile this with a real equality requirement. It is much better to recognize that Congress did not believe it was bound by the equality requirement of the Amendment.

Why would Congress pass an Amendment that prohibited states from discriminating in ways that it would then engage in itself? There are various possible explanations, but the best one in my view is that the Congress could not really agree on the version of the equality requirement that they wanted to impose generally. Despite their disagreement, they knew they needed to impose a requirement on the states – otherwise they would discriminate viciously – and therefore chose one. By contrast, they were much more trusting that the federal government would behave properly and therefore decided that it was not essential to impose the limitation on it. (For a longer treatment and other explanations, see here.)

Since the Congress was not subject to an equality requirement, it could pass laws on an ad hoc basis that different shifting majorities believed were acceptable. These laws may not have all followed a single principle, but that does not mean that such a principle was not imposed on the states and that that principle did not differ from some of the laws Congress passed.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Philip W says

    “And therefore chose one.” This is where your refusal to admit the need for constitutional construction seems most ridiculous. In what sense can the language of the 14th Amendment be interpreted as choosing *one* particular sense of equality? If that was their aim, then they were grossly incompetent.

  2. Kevin R. Hardwick says

    Mike–

    I do not think there is any doubt whatsoever that the founders assumed that all political leaders, and just about all active citizens, would be male. So Chemerinsky’s point does not strike me as something that we can dismiss quite so easily. Sure, the word “he” could incorporate women. But when used to refer to political life, the word incorporates women into men just precisely as the doctrine of couverture incorporated the legal identity of women into that of their husbands. In all of the states save one, no female persons could vote–and in that one, the only women who could vote were widowed heads of household, who stepped into the legal and public role of their husbands only because their husbands were rather permanently absent. And even this exception to the general rule that women had no civic identity and thus did not vote was eliminated in the early 19th century. So across the entire 18th century, we now think only about 3,000 female votes were cast, counting all elections at every level, local, state, and national.

    So how do we square originalism with the larger cultural, legal, and social fact that in the 18th century, women had no legal identity separate from men? How could a person with no legal identity assume public office? How do we square modern notions of gender equality–in Lockean terms the modern, universal consensus that women possess adult rational faculties every bit as competently as do men–with those of the 18th century, and with the 18th century pretty much universal consensus that women’s rational faculties were sufficiently inferior to those of men that they must be excluded from public life?

    For a fascinating look at this question, in its larger political and social context, see Mary Beth Norton, FOUNDING MOTHERS AND FATHERS.

    • gabe says

      Kevin:
      While it may very well be true that the Founders assumed that all political leaders would be male, they did not constitutionally rule out the possibility of female political engagement. As Ramsey points out in his piece, the term “person” is used when defining the qualifications for President, not “he” or “male” which they typically did when defining requirements for voting in those days.
      Also, if this line of critique is to be sustained, we must also then criticize the Declaration as it also employs the male terminology – it is “all men are created equal.” Are we also to assert that this is the intended meaning of the Declaration?
      I would much prefer Lincoln’s belief that both the Declaration and the constitution established a worthy goal, and however imperfectly attained, was nevertheless ultimately attainable. (Oops!, if we are not careful, we could slip into a “Living” constitution here).

      • Kevin R. Hardwick says

        Gabe–

        I tend to agree with you, actually. I think one way out of the conundrum is to assert (correctly in my view) that Locke’s first principles are correct, but that he and those who followed him in the 18th century incorrectly applied them.

        I also agree that where the language used is an unmodifed “person,” the constitution leaves open the possibility of a female politician. Adjectives, or subsequent use of male pronouns, would make the issue murkier.

        Still–it strikes me as very plausible, indeed pretty close to irrefutably plausible, that when 18th century men used the word “he,” they incorporated women into the word in a fashion akin to the prevailing legal doctrine of couverture, which defined women as legally identical to their husbands.

        Even in the 21th century, the fading remnants of this notion (grounded as they are in one popular reading of the Bible) bedeviled politicians like Michelle Bachman.

        Well wishes,
        Kevin

        • David Upham says

          I’ll go out on a limb here: I suspect there are countless statutes, rules, and other laws that use the generic pronoun “he,” and that virtually no one seriously contested that such a term referred exclusively to male persons or in any way excluded females, whether married or not. These male or female persons include (1) a “Person charged in any State with Treason, Felony, or other Crime,” who is subject to extradition, (2) the accused enjoying rights under the Sixth Amendment, (3) the person who cannot “be compelled in any criminal case to be a witness against himself,” etc.

          • Kevin R. Hardwick says

            David–

            There is a difference between “person” for civic purposes, versus “person” for purposes of criminal law. In the 18th century, dependent persons–women, slaves, apprentices, children, and so on–were liable for criminal misconduct, and so in that sense counted as persons, but were not counted as “persons” for civic purposes. Thus, the adult male head of household incorporated the civic identity of all of his dependents, for purposes of treating with the outside world. But if a wife committed murder, or theft, or criminal assault, she could be and was tried in a court of law, and held personally accountable. So a wife was a person for the purposes of the criminal law, but had no legal identity for purposes of contracting debts–or of voting, or of holding office. For the application of this to slavery, read James Madison’s Federalist 54, where Madison with characteristic crispness exploits these distinctions in order to defend the 3/5 clause.

            So at least so far as the examples you adduce above go, you have not yet defeated the argument I am making.

  3. David Upham says

    According to the brilliant progressive–and first Hispanic Supreme Court Justice–”the Fifth Amendment, unlike the Fourteenth, has no equal protection clause,” and therefore certain “classifications and exemption would therefore be upheld [even] if they had been adopted by a state and the provisions of the Fourteenth Amendment were invoked to annul them.” Stewart Machine Co. v. Davis, 301 U.S. 548 (1937).

    • David Upham says

      The word “civic” is overbroad. Coverture affected only certain capacities of property, contract, suit. And of course, coverture affected only married women. You have it backwards–to the extent coverture covered the individuality of the woman, then it was coverture that denied married women “personhood” (in a limited sense), not that coverture made women, otherwise non-persons, into persons.

      • Kevin R. Hardwick says

        David,

        I do not think I wrote anything to imply that couverture made women, otherwise non persons, into persons. If I did say that, you are right to correct me. But I did not say that.

        The normative status for women was to marry, and the vast majority of women in 18th century America conformed. As a practical matter, the only women who possessed civic identity (I use the word advisedly) were widowed heads of household.

        Women who were not head of household could not sue or be sued, enter contracts of their own will, assume the civic obligations of citizenship (hold office, serve in the militia, vote, serve on juries, serve on a posse comitatus, serve on a church vestry (in those places where the church was established by law, and was an agent of government), or any of a variety of other public civic functions. Women, with a very few exceptions, were civically disenfranchised, because their civic identity was subsumed into that of the head of household. This was true also for dependent men, but of course many of those people ultimately became heads of household.

        Some, a very tiny minority, of high status women did achieve civic status, but almost always in a fashion that upheld the broader social and legal norms. Thus, for example, for a brief period in the 17th century in Maryland, in the absence of a trained male attorney, a high status woman fulfilled the duties of the colony attorney general, until an appropriately trained man arrived in the colony. But these exceptions were very, very rare. And even in these instances, they were not fully civically enfranchised.

        • Kevin R. Hardwick says

          Given the list of civic privileges and obligations I supply above, can you think of any capacities in which women were civically empowered, independent of their husbands, fathers, or brothers? I can think of only one: in some instances in which a court needed to secure physical evidence from examination of the body of a woman, eg. Witchcraft or rape trials, a jury of respected married women could be empaneled to conduct the search. That is a pretty slim basis for civic identity.

        • David Upham says

          Two points to respond to. Women had no civic status, which I take to mean extra-domestic apart from their male relatives because (1) virtually all adult women were married, and (2) marriage resulted in a virtual loss of civic status.

          1. 90% is alot. 10% is not nothing. And of the 90% who did marry, many married in their late 20s, plus widowhood. In my legal research (on other issues) I’ve regularly run across lawsuits filed by women, with not even the hint that women cannot be parties to suits, mostly involving title to property. In fact, a rough estimate is that of the major cases I’ve looked at, maybe 20% involved female plaintiffs asserting property rights.

          And of course, in America, the very definition of marriage presupposed the free consent of the unmarried woman.

          2. As to married women, here is just a few things that come to mind as to their civic involvement, which were not affected by coverture: freedom of speech, press, religion, association, petition, assembly, these are probably the most significant. Arguably they remain the most important public rights we enjoy. For progressives, at least, they are far more important than mere property rights.

          And to resume to the original point of dispute, were women “persons” only insofar as some male-man sponsored them? NO ONE said otherwise. Rather, they were persons, like aliens, children, non-residents, excluded from political rights; and if married, they were persons who exercised their free consent to marry, to which the law attached significant burdens and rights assymetrically on the parties, including the woman’s loss of the power to independently own and deal in property.

    • David Upham says

      The word “civic” is overbroad. Coverture affected only certain capacities of property, contract, suit. And of course, coverture affected only married women. You have it backwards–to the extent coverture covered the individuality of the woman, then it was coverture that denied married women “personhood” (in a limited sense), not that coverture made women, otherwise non-persons, into persons.

      • gabe says

        And it certainly did not apply to female sovereigns – married or unmarried (Elizabeth I, Isabella, Catherine come to mind).

  4. says

    Mike R. is right (if the branch is specified) when he says “…the Equal Protection Clause or the Privileges or Immunities Clause – did not apply to the federal government. Thus, the federal government’s actions cannot be assumed to reflect its views of the meaning of the 14th Amendment”. (If one has doubts — the Supremacy Clause applies, where prohibited — to the federal judiciary.) My problem is not w/segregation. In my City, in Massachusetts, where I was born, there was no segregation in my school; Black and white attended in the same classroom – well before Brown v BOE of 1954. Though I do not entirely agree w/Mike R. that the federal government (Congress) would be excluded “to reflect” on its meaning if a State ‘did deny’ equal rights. If a State created a statute enumerating ‘a right differential’ – the federal Congress can “reflect its views of the meaning”; yet, prohibited by the federal court – unless the federal Congress reflects wrongfully. And even there, the federal court must defer to the State court for its resolution. The reason for my conclusion is based on the fact that the 14th enumerates the following: ‘No State (law) shall…. nor shall any State (law)… ‘… nor deny…the equal protection of the (State) laws”; along w/Section 5. What is enumerated in the 14th – is!
    And all of this falls within “the Due Process – of law!”, yet, not a federal court’s syllable enumerated reconstruction.

  5. Brian G. says

    Clearly, under originalism Scalia would rule that the 13th Amendment does not prohibit slavery because there were some states that ratified it that slavery was legal. Ergo, Scalia and the Republicans want to reintroduce slavery. Vote Democrat or be put back to work against your will in the cotton fields!

    • Tom Y. says

      All considerations of “originalism” are overcome by the “new originalism” of constitutional amendments as they are ratified.

  6. askeptic says

    IANAL, but this discussion moves me to ask the question:

    Should SCOTUS Incorporate the 14th-A against the Federal Government, if it doesn’t already apply?

  7. says

    Ultimately, the law doesn’t matter, because men don’t live by the law, they live by the judeo-christian code of honor (Yes, this most likely excludes lawyers). What matters is absolute moral right and absolute moral wrong: Congress exempting themselves from laws they pass – as in the case of Obamacare – is morally reprehensible, and that is a point of fact, not an opinion.

    Lawyers, cops, and homosexuals hide behind the skirts of the law (Pardon the multiple levels of redundancy inherent in that formulation), while those of us in the creative classes are victimized by the law (Since lawyers create nothing, produce nothing, and provide no service a man can’t live perfectly well without, the only way they can make a living is by filching the lifeblood out of the creative classes: In other words, lawyers are parasitic, and the police are nothing more than their muscle).

    At least all dogs go to heaven and all lawyers go to hell. That gives comfort. lol.

  8. Tom Y. says

    If the courts are allowed to change the “originalist” meaning of the constitution, thereby ‘amending’ it, a constitutionally required ratification by Congress and the States should be required

  9. Steve says

    “The same Congress that ratified the Fourteenth Amendment …”

    The Fourteenth Amendment was never legally ratified by Congress in accordance with the amendment process described in the Constitution.

  10. James says

    The 14th Amendment is a fraud and should be rescinded. It is the problem that gives us our current defacto state. Why do we need to be reduced to ‘citizens’ (slaves ourselves) in order to “emancipate.” It has created the monster (DC) we have today. We have the bill of rights and this gives us common law and ‘equal-protection.’

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