(4) prohibited from denying people life-, liberty-, and property-related protection that is provided by constitutionally proper federal laws.Ĭontinue reading Antisubjugation and the Equal Protection of the Laws. (3) prohibited from enacting discriminatory laws that unreasonably burden or benefit the life, liberty, and property of some people more than others The Fourteenth Amendment promises that all persons in the United States shall enjoy the equal protection of the laws. (2) required to provide people with impartial access to the courts (1) required to impartially execute nondiscriminatory state laws that protect life, liberty, and property The Clause also prohibits states from interfering with any protection provided by constitutionally proper federal laws. The constitutional responsibility for ensuring the equality of equals is principally cast in the equal protection clause of the Fourteenth Amendment. This Article contends that the Equal Protection Clause guarantees both nondis-criminatory law enforcement and nondiscriminatory laws. The equal protection clause isn't so much about making sure. When the 14th Amendment passed in 1868, it was intended to give former slaves equal protection and voting rights under the law it was not meant to protect. One group of scholars-call them protection theorists-contends that the original meaning of “the equal protection of the laws” only guarantees security against physical violence and possibly access to the courts.6 Another group of scholars contends that the “state-action doctrine” is incoherent and that the original meaning of the Fourteenth Amendment does guarantee positive rights to certain kinds of governmental aid, including protective services. The equal protection clause specifically requires each state to treat its citizens the same as others that are in comparable situations. Scholars have long questioned these features of Fourteenth Amendment law. At the same time, the Court has insisted that the Equal Protection Clause generally prohibits unjustified, intentional discrimination. The Court has articulated a general rule against judicial use of the Fourteenth Amendment’s Due Process Clause to guarantee governmental protection against private violence.2 It has also hindered Congress’s efforts to provide civil remedies for private violence. It then contends that constitutional doctrine should be reconstructed to realize the Constitution’s promise of “the equal protection of the laws.” This Article argues that neither of those things is true as a matter of the original meaning and purpose of the Equal Protection Clause.
For nearly 150 years, the Supreme Court has held that the Fourteenth Amendment to the United States Constitution does not secure “positive” rights to governmental aid or apply to “private” action.
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