Equal protection, class legislation, and colorblindness.

• Author: Saunders, Melissa L.

Scholars and judges have long assumed that the Equal Protection Clause(1) is concerned only with state action that has the effect of singling out certain persons or groups of persons for special benefits or burdens. Under the traditional doctrinal framework, state action that has this purpose and effect bears a certain burden of justification under the clause, a burden whose stringency varies, depending on the criteria used to define the class being singled out for special treatment and the importance of the interest affected.(2) But state action that lacks such a "discriminatory effect" is not, on the traditional understanding, subject to equal protection challenge at all; if its rationality is to be challenged, it must be under the Due Process Clause instead.(3)

Over the years, the United States Supreme Court has often had difficulty deciding whether certain kinds of state action actually single out certain persons or groups of persons for special benefits or burdens.(4) But all of its great equal protection battles -- over racial segregation, state legislative reapportionment, gender discrimination, and affirmative action -- have been fought on the assumption that such a discriminatory effect is a necessary element of an equal protection claim. On this fundamental aspect of its equal protection jurisprudence, the Court has long displayed remarkable unanimity -- that is, until the racial gerrymandering cases of the last few years.(5)

In the racial gerrymandering cases, the Court has confronted state action that, though undeniably race-conscious, does not appear to single out any identifiable group of persons for special disadvantage because of their race. Though various members of the Court have argued in dissent that the action could not violate the Equal Protection Clause precisely for this reason,(6) a consistent five-member majority has steadfastly ignored this argument. This majority has interpreted the Equal Protection Clause as giving all persons a substantive constitutional right not to be dealt with by the state on the basis of their race, whether or not this results in their being singled out for any special disadvantage because of their race.

In this article, I argue that the interpretation of the Equal Protection Clause embraced by the majority in the racial gerrymandering cases -- though morally attractive, rhetorically powerful, and politically popular -- is profoundly inconsistent with the original understanding of the Fourteenth Amendment.(7) Unlike others who have attacked this "colorblind" interpretation of the Equal Protection Clause on historical grounds, however, I do not contend that the clause's framers and ratifiers understood it to strike only at state action that tends to create or perpetuate a "caste" system, by branding a certain class of persons as inferior to all others.(8) Nor do I take the position that they understood it to mandate equality only with respect to the "remedial" or "protective" functions of state government.(9) Instead, I argue that they understood the Equal, Protection Clause to nationalize a constitutional limitation on state action developed by the state courts in the first half of the nineteenth century: the doctrine against "partial" or "special" laws, which forbade the state to single out any person or group of persons for special benefits or burdens without an adequate "public purpose" justification.(10)

This original understanding is, I believe, reflected in the language and structure of orthodox equal protection jurisprudence. In recent years, however, it has been forgotten, obscured by an increasing focus on abstract rhetoric about "discrimination," "suspect" criteria, and impermissible "stereotyping." The result, I contend, has been mounting confusion about the basic evil to which the clause is directed. In the racial gerrymandering cases, this confusion has reached its logical conclusion, leading the Court to embrace a vision of the Equal Protection Clause that cannot be squared with the original understanding.

In Part I of the article, I examine the antebellum state constitutional doctrine against partial or special laws, a tradition too often neglected in scholarly accounts of the origins of the Equal Protection Clause.(11) I first trace the development of this doctrine from its roots in English common law, early American political thought, and the political rhetoric of Jeffersonian and Jacksonian reformers to its transformation into positive state constitutional law between 1830 and 1860.(12) I then explain how the doctrine differed from its close relative, the "vested rights" doctrine.(13) Finally, I show how the doctrine worked its way into the ideology of the infant Republican Party at mid-century and became the linchpin of that party's opposition to slavery and the Black Codes.(14)

Part II makes the case that those who framed and ratified the Fourteenth Amendment understood and intended its Equal Protection Clause to nationalize the developing state constitutional doctrine against partial or special laws. I begin by demonstrating that the framers and ratifiers did not understand or intend the clause to render all race-based or race-conscious state action absolutely, or even presumptively, unconstitutional; indeed, they repeatedly rejected proposals that they believed to embody such a rule.(15) I then present the evidence that they did understand and intend the clause to write into the Constitution the doctrine against partial or special laws that was then developing in the state courts, modifying that doctrine only to make clear, as the antebellum state courts had not, that state action singling out African Americans for special disadvantage was presumptively unconstitutional.(16)

Part III contends that the Supreme Court's equal protection jurisprudence has long been consistent with this original understanding. Indeed, many of the lawyers, scholars, and judges who first dealt with the Equal Protection Clause recognized that it had been patterned on the preexisting state law tradition against partial or special laws.(17) This recognition, I contend, profoundly influenced the Supreme Court's early equal protection jurisprudence, explaining a number of its otherwise curious interpretive turns.(18) The Court remained faithful to this original understanding for most of the twentieth century, even as the historical underpinnings of that understanding faded from its consciousness.(19)

Part IV argues that the racial gerrymandering cases of the 1990s adopt an interpretation of the Equal Protection Clause that deviates from the original understanding in a subtle but significant way -- an interpretation that sees the clause as limiting not only the states' ability to favor one group of persons over another, but also, and perhaps more fundamentally, the states' ability to deal with people as members of racial groups, rather than as individuals.(20) In those cases, I contend, the Court has read the clause as giving all persons a substantive constitutional "right" not to have the state deal with them on the basis of their race, even when doing so does not result in their being singled out for any special disadvantage because of their race.(21) I conclude that if this "right" has any constitutional foundation at all, it lies not in the Equal Protection Clause, but in the substantive aspect of the Due Process Clause.

Part V asks why a Court comprised of justices who claim to be originalists -- as the members of the Shaw-Miller majority do -- might have chosen to ground the limitation on state action recognized in the racial gerrymandering cases in the Equal Protection Clause, rather than the Due Process Clause.(22) I suggest that the explanation may not be as sinister as most critics have maintained: the Court did not invoke equal protection dishonestly, as a means of disguising what it knew to be the recognition of a new substantive due process right; it genuinely believed it was being faithful to the original understanding of the Equal Protection Clause. The apparent inconsistency stems simply from the fact that the Court's memory of that understanding is no longer accurate; it has forgotten a number of critical details. I conclude with some thoughts about how the Court came to forget these details, and some suggestions on how it might recast the racial gerrymandering decisions to bring them more in line with the original understanding.

1. THE ANTEBELLUM STATE CONSTITUTIONAL TRADITION AGAINST PARTIAL OR SPECIAL

   Laws

   As constitutional historians have long recognized, any attempt to recover the original understanding of the Equal Protection Clause must include a careful examination of the various strands of antebellum thought from which the clause was derived, for its framers were "not original thinkers."(23) In drafting the clause and explaining it to their colleagues and constituents, its framers drew upon a number of distinct ideas that were afoot in the public discourse of the day.(24) The existing literature has thoroughly examined the influence of the abolitionist movement, with its theories of natural rights and racial equality,(25) and the antebellum concept of federalism.(26) But it has given very little attention to an equally important strand of that rich and diverse intellectual history: the antebellum state constitutional tradition against partial or special laws.(27) The oversight has obscured the significance of much of what the framers and ratifiers said about the clause, distorting our view of the original understanding and encouraging the misperception that the concept of equal protection was something invented by the antislavery movement and thus primarily racial in its focus. This Part seeks to correct that misperception, and to lay the groundwork for a more accurate understanding of the intentions of the framers and ratifiers, by exploring the link between the antebellum state constitutional tradition against partial or...