Table of Contents Introduction I. The Text and Structure of the Fourteenth Amendment II. A Textual Reconstruction of Equality Jurisprudence: The Citizenship Clause and Its Implementing Legislation A. Congress's Authority to "Enforce" the Citizenship Guarantee and to Make Laws "Necessary and Proper" to That End B. Federal Civil Rights Protections as Citizenship Clause Legislation 1. The Civil Rights Act of 1866 2. Private interference with the right to vote: The Civil Rights Act of 1870 3. Jury service: The Civil Rights Act of 1875 C. Other Views of the Citizenship Clause III. The Equal Protection Clause A. Putting "Protection" Back into "Equal Protection of the Laws" 1. Romer v. Evans 2. United States v. Morrison B. The Meaning of "Equal" Protection--and Its Relationship to "the Laws" C. The Boundaries of "Protection" IV. The Court's Equality Doctrines Revisited A. Jury Service B. Plessy v. Ferguson C. School Desegregation D. Loving v. Virginia E. Affirmative Action F. Sex Discrimination V. Advantages of a Text-Centered Equality Jurisprudence Conclusion Introduction
Constitutional text is little more than an afterthought in much of the Supreme Court's decisionmaking. (1) And nowhere is that more apparent than in the Court's equal protection doctrine. The Court interprets "equal protection of the laws" to require equality in matters having nothing to do with protection. (2) It requires the federal government to comply with the Court's equal protection doctrine, even though the text of the Equal Protection Clause applies only to the states. (3) And it has created a "tiers of scrutiny" doctrine that applies different standards of review to different categories of discriminatory laws (4)--even though the text of the Equal Protection Clause draws no distinction between laws that discriminate against racial minorities and laws that classify on other grounds. (5)
Even the most foundational principles of equal protection jurisprudence have no apparent connection to the text of the Fourteenth Amendment. The Justices tell us, for example, that a "core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race." (6) Yet the Fourteenth Amendment makes no mention of race and has no textual prohibition on state-sponsored racial discrimination. And other provisions in the Constitution make clear that the Fourteenth Amendment did not give blacks the right to vote; the Fifteenth Amendment would not have been necessary if the Fourteenth Amendment had done this, (7) and Section 2 of the Fourteenth Amendment assumes that states may deny blacks the right to vote and accept reduced representation in Congress. (8) All of this is hard to square with the Court's oft-repeated mantra that the Fourteenth Amendment prohibits all racial classifications in government (9)--and the Justices have not explained how that mantra can be reconciled with these textual realities of the Reconstruction Amendments. Instead, the Justices have relied on judicial precedent and ruminations about the Fourteenth Amendment's "purpose," (10) rather than anything that appears in a formally enacted text.
The atextual nature of the Court's opinions has led many to conclude that modern equality jurisprudence can be defended only by rejecting textualism and embracing purposivist or precedent-based interpretive methodologies. (11) Indeed, even textualist jurists have surrendered to purposivism when attempting to explain how the Fourteenth Amendment can prohibit racial classifications while permitting other forms of state-sponsored discrimination. (12) But it is a mistake to think that full-throated textualism is incompatible with the Supreme Court's racial-equality pronouncements. And it is equally wrong to think that modern equality jurisprudence necessarily rests on an interpretive methodology that minimizes or ignores the language of formally enacted texts.
There is in fact plenty of textual support for the Supreme Court's modern equality decisions--and it comes not from the Equal Protection Clause, but from the congressional civil rights enactments that require racial minorities to be treated as full and equal citizens. Statutes of this sort have been on the books since before the Fourteenth Amendment was ratified, (13) and they continue to exist today. The Civil Rights Act of 1866, for example, predates the Fourteenth Amendment and gives minority citizens the same rights to own property and to make and enforce contracts that white citizens enjoy. (14) In 1875, Congress went a step further and outlawed racial discrimination in jury selection and in places of public accommodation. (15) Today, federal legislation prohibits state and local governments from segregating or discriminating against racial minorities in employment, education, and public accommodations, and it forbids racial discrimination in every program or activity that receives federal funds. (16)
The conventional view is that these civil rights statutes simply repeat what the Equal Protection Clause had always required of state and local governments. (17) But there are problems with interpreting the Equal Protection Clause that way. First, many of these civil rights statutes require equal treatment of racial minorities, which goes beyond the equal protection of the laws that the Fourteenth Amendment requires. Second, these civil rights statutes outlaw only racial discrimination, yet the text of the Equal Protection Clause makes no distinction between racial classifications and other forms of discrimination. On the contrary, the constitutional text requires states to confer the "protection of the laws" equally upon every person--man, woman, or child; citizen or alien--within the state's jurisdiction. Finally, many of these discriminatory practices (such as school segregation and race-based exclusions from jury service) were considered lawful and acceptable when the Fourteenth Amendment was ratified. (18)
The sounder view is to regard these civil rights statutes as an exercise of delegated congressional authority rather than self-executing constitutional commands. And the principal source of authority for racial-equality legislation is not the Equal Protection Clause, but the Citizenship Clause--which secures the status of federal and state "citizen" to those born or naturalized in the United States (19)--along with the provisions that empower Congress to "enforce" this status and to make laws "necessary and proper" to that end. (20) The Citizenship Clause, standing alone, does not abolish racially discriminatory laws; the text confers only the formal title of "citizen" and does not entrench restrictions on a state's authority to classify or discriminate among the citizenry. But Section (5) of the Fourteenth Amendment empowers Congress to "enforce" the Citizenship Clause with "appropriate legislation." (21) And the Necessary and Proper Clause allows Congress to make all laws "necessary and proper" for carrying into execution the powers held by Congress--including the power to secure one's status as a citizen of his state. (22) This is what empowers Congress to reach beyond the mere self-executing commands of the Fourteenth Amendment, and to legislate against regimes that give racial minorities the formal title of "citizen" yet relegate them to second-class citizenship by withholding rights and privileges that white citizens enjoy. And these constitutional provisions permit Congress to legislate not only against state action but also against private interference with the rights that attach to citizenship--such as voting and jury service. The text of the Citizenship Clause, unlike other provisions of the Reconstruction Amendments, is not limited to state action.
The enforcement power and the Necessary and Proper Clause give Congress discretion to decide how far it will go in ensuring that minorities are not merely called citizens but also treated as citizens on the same terms as white Americans. And these powers allow Congress to legislate against all regimes of caste or second-class citizenship--including practices (such as segregated schools and sex discrimination) that were not considered to be unconstitutional when the Fourteenth Amendment was ratified. Nothing in the text of the Fourteenth Amendment limits Congress to the protection of racial minorities, and nothing in the text of the Amendment treats racial discrimination differently from discrimination on account of sex, religion, disability, or any other factor. So any equality norms that Congress may enact for minority citizens should be equally constitutional as applied to women, religious minorities, the elderly, the disabled, or other marginalized groups. And the courts' special solicitude for the victims of racial discrimination is not attributable to anything in the Equal Protection Clause. It instead reflects Congress's decisions to abolish racial classifications that undermine one's status as a full and equal citizen, while leaving other state law classifications undisturbed.
Rooting the Court's equality jurisprudence in congressional legislation offers some advantages over the status quo regime. First, it avoids distorting the text of the Equal Protection Clause. The language of the Equal Protection Clause does not require equal rights or equal treatment for racial minorities; it requires only the "equal protection of the laws"--a protection that must be conferred universally upon every "person" within the state's jurisdiction. (23) Yet the Supreme Court has transmogrified the command of "equal protection of the laws" into an equal-treatment requirement--but only equal treatment with respect to race, sex, and other court-defined categories, because it would of course be absurd to interpret the Fourteenth Amendment as prohibiting all forms of unequal treatment. But nothing in the text of the Equal Protection Clause differentiates race or sex discrimination from other...