Over at the Originalism Blog, Andrew Hyman has a post discussing the meaning of the Equal Protection Clause. While modern law treats the Clause as protecting against all unequal laws, that is not the way the language reads. The language says no state shall deprive any person of the equal protection of the laws. Thus, the language says there is a category called “the protection of the laws” and the Clause requires that this protection be equal.
When one looks at the traditional understanding of the protection of the laws, it turns out that it means something like the remedies that are provided to protect people’s legal rights. For a seemingly exhaustive discussion of the evidence for this, see Chris Green’s two articles here and here. Thus, the Clause does not protect against all unequal laws, but instead of the failure of the state to protect people’s preexisting rights.
Under this interpretation, the Equal Protection Clause was about ensuring that the law protected all persons equally. Thus, it prohibited sheriffs in the former confederate states from looking the other way when blacks were lynched. (One important question that this interpretation raises, which I do not discuss here, is how equality is protected under the 14th Amendment. )