Mike Ramsey reports on the posting of a new article by Gregory Dolin that attempts to justify the case of Bolling v. Sharpe, which held that a Fourteenth Amendment equality requirement applies to the federal government. This is a difficult argument to make, since the two provisions which are most likely to apply an equality requirement — the Privileges or Immunities Clause and the Equal Protection Clause — apply only against the states, not the federal government. There is some evidence that the Due Process Clause of the Fourteenth Amendment applies an equality requirement, but that Clause applies only to the states. There is not much evidence that the Fifth Amendment Due Process Clause, which applies to the federal government, contains such a requirement.
Dolin argues that an equality requirement derives from the Citizenship Clause of the Amendment, which provides that “All persons born or naturalized in the United States . . . are citizens of the United States.” While I have not read Dolin’s paper, this is a common argument these days, most recently defended by Ryan Williams in the Virginia Law Review.