The Equal Protection Clause

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

—Christopher R. Green

Introduction

During Reconstruction, freedmen and unionists in the South needed protection from private violence at the hands of the Ku Klux Klan. Against that background, it is natural to read the Equal Protection Clause as requiring states to give everyone in the state “protection of the laws”: literal protection from violence and the right to seek redress for privately inflicted injuries through the courts. The Supreme Court, however, has interpreted “equal protection of the laws” as encompassing equality of treatment with respect to anything the government does or provides—education,¹ voting,² or the regulation of low-alcohol beer.³ But other clauses in the Fourteenth Amendment, especially the Privileges or Immunities Clause, could also have been interpreted to secure such equality. (See Essay No. 140.) If the Court were to ask whether equality in these fields is a privilege of citizens rather than reading the Equal Protection Clause so awkwardly, it could use the Equal Protection Clause to cover an important constitutional right that it has denied: the right to physical protection from violence.⁴

Historical Background

The concept of protection by the government has deep roots. In paragraph 40 of Magna Charta (1215), King John promised, “To no one will we deny, delay, or sell right or justice.” Paragraph 40 does not say what “right or justice” entails—other provisions of law do that. It declares that the king’s job is to give people their legal rights immediately and without a bribe. Legions of writers such as Edward Coke, Thomas Hobbes, and John Locke described government as the exchange of protection for citizens’ allegiance. “Allegiance and protection are reciprocal” became a common maxim. Sir William Blackstone defined “the protection of the law” as the “method of recovering and asserting those rights, when wrongfully withheld or invaded.”⁵

The Declaration of Independence asserted that a lack of protection is a lack of government. Paragraph 25 complains that King George III “has abdicated Government here, by declaring us out of his Protection and waging War against us.”⁶ State constitutions echoed the same theme. The New Jersey constitution of 1776 noted that “allegiance and protection are . . . reciprocal ties, each equally depending upon the other, and liable to be dissolved by the others being refused or withdrawn.”⁷ The North Carolina and Pennsylvania constitutions of 1776 and the Vermont constitution of 1777 included similar language.⁸

At the Constitutional Convention, there was no general discussion of protection from violence because the federal government was not given any general responsibility for the control of crime. However, Article II requires that the President “take Care that the Laws be faithfully executed” and Article IV requires that the United States protect states against (presumably large-scale) “domestic Violence.” (See Essay Nos. 115 and 147.)

This understanding continued into the early Republic. In Marbury v. Madison (1803), Chief Justice John Marshall wrote that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.”⁹ Marshall stressed that “[o]ne of the first duties of government is to afford that protection.”

The phrase “allegiance and protection are reciprocal” was repeated countless times in treatises, arguments, and judicial decisions in the decades before the Civil War.¹⁰ “Protection of the law” was explicitly distinguished from other rights in cases like Roberts v. City of Boston (1850), Charles Sumner’s famous attempt to desegregate the Boston schools. The Massachusetts Supreme Judicial Court ruled that all people are “equally entitled to the paternal consideration and protection of the law,” but this entitlement was explicitly distinguished from a general freedom from discrimination.¹¹

Adoption of the Equal Protection Clause

In 1865, the Civil War concluded and President Abraham Lincoln was assassinated. Between April and December of that year, President Andrew Johnson’s Reconstruction regimes governed the South. The following year, Congress passed the Civil Rights Act of 1866 over Johnson’s veto.¹² This landmark statute addressed two problems. First, Congress was dealing with the “Black Codes.” The southern states engaged in open racial discrimination against the right of freedmen to make contracts to work in occupations reserved for white citizens. Second, Congress was trying to prevent private violence by the Ku Klux Klan and its ilk. The law provided in part that the freedmen would be “citizens of the United States,” and these citizens would have the right to “make and enforce contracts, to sue, be parties, and give evidence” as well as the right to own land. They would also have the “full and equal benefit of all laws and proceedings for the security of person and property.”

A few weeks after the Civil Rights Act was passed, Representative John Bingham of Ohio proposed the language that became the second sentence of Section One of the Fourteenth Amendment.¹³ This draft included what would become the Equal Protection Clause.¹⁴ There were no significant discussions of the meaning of “protection of the laws” except as an aside. Senator Edgar Cowan of Pennsylvania noted that even a visiting traveler “has a right to the protection of the laws,” which he illustrated as the right to the enforcement of laws against murder or assault.¹⁵ The text of the Equal Protection Clause fits the maxim from Marbury v. Madison perfectly. To be “within a state’s jurisdiction” (its “speaking of the law”) is to be bound to show allegiance to the state and thus entitled to the protection of its laws.

Enforcing the Fourteenth Amendment

After the Fourteenth Amendment’s ratification in 1868, the Privileges or Immunities Clause was seen as a mandate for the government to treat people equally. For example, during congressional debates, this provision was invoked as the basis for black voting rights.¹⁶ And in Bradwell v. Illinois (1873), advocates of gender equality pointed to the clause to support a woman’s right to work as an attorney.¹⁷

In 1870, Congress readopted the Civil Rights Act of 1866. This statute granted non-citizens the right to make contracts but not the right to own real estate. In other words, the law overtly discriminated against non-citizens. The Equal Protection Clause, by its terms, covers all persons and not just citizens; it refers to any “person within its jurisdiction.” If “equal protection of the laws” were a general ban on discrimination, this type of discrimination would make no sense. Congress itself withheld from non-citizens the right to own land, and there had long been racial discrimination in determining who might become a citizen. If the Equal Protection Clause is a general ban on discrimination, then the discrimination in the Civil Rights Act, if done by a state, would violate the Equal Protection Clause. (Of course, the Equal Protection Clause itself limits only state action, not action by the federal government, but it would be very odd for Congress to violate the very principle it was imposing on states.) In response to a question about whether the Civil Rights Act’s reenactment gave non-citizens all the rights of citizens, Senator William Stewart said, “No; it gives all the protection of the laws. . . . [I]t has no reference to inheriting or holding real estate.”¹⁸ However, if the Equal Protection Clause is limited to “protection of the laws,” Congress’s actions make sense.¹⁹

During debates over what became the Ku Klux Act of 1871, Republican after Republican emphasized “protection” in the Equal Protection Clause.²⁰ Bingham identified the clause with paragraph 40 of Magna Charta. Section 3 of the act provided that if a “State shall either be unable to protect, or shall, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States.”²¹ Failure to protect against private violence from any cause, explicitly including the lack of ability, was the breach of a duty to supply equal protection of the laws.

Judicial Precedent

The U.S. Supreme Court soon rejected this settled congressional understanding. The Slaughter-House Cases (1873) rejected an equal-citizenship reading of the Privileges or Immunities Clause.²² Thirteen years later, Yick Wo v. Hopkins (1886) used the Equal Protection Clause to fill the void left by Slaughter-House. Yick Wo rearranged the text of the clause: “The equal protection of the laws is a pledge of the protection of equal laws.”²³ This decision reassigned “equal” from modifying “protection” to modifying “laws.”²⁴

Since Yick Wo, the Court’s antidiscrimination law has been rooted in the Equal Protection Clause, and this doctrine applies to non-citizens as well as citizens. Yick Wo declared unconstitutional discriminatory regulatory enforcement against Chinese nationals in San Francisco. Strauder v. West Virginia (1880) found unconstitutional a West Virginia law that excluded black people from juries.²⁵ Gulf Railway v. Ellis (1897) found that discrimination against railroad corporations was unconstitutional,²⁶ although Plessy v. Ferguson (1896) infamously upheld racial segregation in railroads.²⁷ Justice John Marshall Harlan made nods to equal citizenship in several majority opinions and solo dissents,²⁸ but the Court did not overrule Slaughter-House.

During the early part of the twentieth century, the Court provided strong protections for economic and other property rights. But in the wake of the New Deal, the Court eventually retreated from its defense of laissez-faire free-enterprise rights.²⁹ Rather, the Court limited itself to verifying the existence of a “rational basis” for a distinction in the law. However, laws that affected so-called “[d]iscrete and insular minorities,” would still continue to receive special solicitude and heightened review.³⁰ By the 1970s, the Court had put together a tripartite scheme:

• Laws that make racial, national, or citizenship-based classifications are reviewed under “strict scrutiny” and must be “narrowly tailored” to achieve a “compelling interest.” These cases declared unconstitutional segregation, limits on interracial marriage, some forms of affirmative action, and citizen-only welfare benefits.³¹ However, citizenship-based occupational limits for police or teachers are not subject to strict scrutiny.³² Neither are occupational tests or zoning codes that merely produce disparate impact on different racial groups.³³
• Laws that make sex classifications are reviewed with “intermediate scrutiny” and must be “substantially related” to achieving an “important interest.” These cases require the drinking age to be the same for men as for women and permit men to attend the Mississippi University for Women and women to attend the Virginia Military Institute.³⁴ But the Court has upheld sex distinctions in immigration law, draft registration, statutory rape cases, and perhaps sex segregation in schools.³⁵ Disparate impacts created by a veteran’s preference or pregnancy discrimination are not reviewed under heightened scrutiny.³⁶
• Laws that make age, disability, wealth, or other classifications must only be “rationally related” to achieving a “legitimate interest.”³⁷ The Court has declared unconstitutional welfare rules that are hostile to “hippies,” zoning restriction that are hostile to those with mental disabilities, and a state-level ban on local anti-discrimination laws for gays and lesbians. But the Court has upheld age limits on types of police work and property tax-based education funding.³⁸

Before the New Deal, the Court asked one difficult question: whether a particular distinction is arbitrary or not. The new system asks at least seven difficult questions: how much scrutiny a particular distinction gets and what counts as “narrowly tailored,” “compelling,” “substantial,” “important,” “rational,” and “legitimate.” Several justices have complained that it is a mistake to treat all classifications of a particular type as if they imposed the same discriminatory costs and therefore need exactly the same sort of justification.³⁹

The Equal Protection Clause restricts actions by the states, not actions by the federal government. However, the Court has used the Fifth Amendment Due Process Clause to declare unconstitutional federal school segregation and affirmative action policies.⁴⁰ By contrast, the Court has upheld citizenship-based classifications in federal immigration law and classifications based on tribal status.⁴¹ Justice Clarence Thomas has argued that this type of analysis is more fitting under the Fourteenth Amendment’s Citizenship Clause, agreeing with a protection-based understanding of “protection of the laws.”⁴²

The Right of Protection

In two cases—DeShaney v. Winnebago County Social Services (1989) and Castle Rock v. Gonzales (2005)—the Rehnquist Court held that the state does not “deprive” people of life, liberty, or property by failing to protect them.⁴³ The Court mentioned the Equal Protection Clause only in the context of its general scheme of equality and rejected the argument that the clause provides a literal entitlement to “protection of the laws.” These holdings have been criticized by originalist scholars.⁴⁴ They contend that the “equal protection of the laws” includes what the Civil Rights Act of 1866 describes as the “full and equal benefit of all laws and proceedings for the security of person and property.”

Open Questions

• What would be the implications of a state having a duty to protect against private violence? If courts are ill-equipped to decide police budgeting issues, what role would Congress have under Section 5 in making this obligation more precise?
• Could Congress prohibit abortion if the Equal Protection Clause imposes a duty to protect fetuses?
• Can the tiers of scrutiny survive under an equal-citizenship approach? In 1866, Republicans repeatedly said voting was not a right of citizens—a civil right—because women and children were citizens but not voters.⁴⁵ Only the Fifteenth Amendment gave freedmen the vote. Racial, sex, and age distinctions get three different levels of scrutiny by the Court despite unified treatment in 1866.
• What would disparate-impact analysis look like under an equal-citizenship approach? One way to reconfigure the law would be to require states to follow the law of trusts, which requires trustees to give “fair and impartial attention” to the needs of all beneficiaries.⁴⁶ It would not be enough for the state merely to refrain from purposefully targeting particular groups.
• What would an equal-citizenship approach mean for affirmative action? Senator Lyman Trumbull defended the Civil Rights Act as giving a remedy to those who needed a remedy, which the white majority did not.⁴⁷ Does antidiscrimination law apply when a majority discriminates against itself? Equal-citizenship provisions in early state constitutions applied to benefits given even to a single citizen and therefore were not limited to discrimination against minorities but would also apply to special benefits given to minorities.⁴⁸

1. Brown v. Bd. of Educ., 347 U.S. 483 (1954); Grutter v. Bollinger, 539 U.S. 306 (2003); Students for Fair Admissions v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023). ↩︎
2. Nixon v. Herndon, 273 U.S. 536 (1927); Reynolds v. Sims, 377 U.S. 533 (1964). ↩︎
3. Craig v. Boren, 429 U.S. 190 (1976). ↩︎
4. DeShaney v. Winnebago Cnty. Soc. Servs., 489 U.S. 189 (1989); Castle Rock v. Gonzales, 545 U.S. 748 (2005). ↩︎
5. 1 Blackstone 55–56. ↩︎
6. Declaration of Independence, ¶ 25. ↩︎
7. N.J. Const. of 1776, pmbl. ↩︎
8. P.A. Const. of 1776, pmbl; N.C. Const. of 1776, pmbl; Vt. Const. of 1777, pmbl. ↩︎
9. 5 U.S. (1 Cranch) 137, 163 (1803) (emphasis added). ↩︎
10. Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Pre-Enactment History, 19 Geo. Mason U. Civ. Rts. L.J. 1, 35–38 (2008). ↩︎
11. Roberts v. City of Boston, 59 Mass. 198, 206 (1850). ↩︎
12. 14 Stat. 27 (April 9, 1866). ↩︎
13. Benjamin B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 87 (1914). ↩︎
14. Id. ↩︎
15. Cong. Globe, 39th Cong. 1st Sess. 2890 (1866). ↩︎
16. Cong. Globe, 40th Cong. 3rd Sess. 555–61 (1869). ↩︎
17. 83 U.S. 130, 136 (1873). ↩︎
18. Cong. Globe, 41st Cong. 2d Sess. 1536 (1870). ↩︎
19. Christopher R. Green, Tribes, Nations, States: Our Three Commerce Powers, 127 Penn. St. L. Rev. 643, 685–87 (2023). ↩︎
20. Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rts. L.J. 219, 224–54 (2009). ↩︎
21. 17 Stat. 13, 14 (April 20, 1871). ↩︎
22. 83 U.S. 36, 101 (1873). ↩︎
23. 118 U.S. 356, 369 (1886). ↩︎
24. United States v. Vaello-Madero, 596 U.S. 159, 178 n.4 (2022) (Thomas, J., concurring); Green, Pre-Enactment History, supra; Green, Subsequent Interpretation and Application, supra. ↩︎
25. 100 U.S. 303 (1880). ↩︎
26. 165 U.S. 150 (1897). ↩︎
27. Plessy v. Ferguson, 163 U.S. 537 (1896). ↩︎
28. Neal v. Delaware, 103 U.S. 370, 386 (1881); Bush v. Kentucky, 107 U.S. 110, 118 (1883); Civil Rights Cases, 109 U.S. 3, 48 (1883) (Harlan, J., dissenting); Plessy, 163 U.S. at 555 (Harlan, J., dissenting). ↩︎
29. W. Coast Hotel v. Parrish, 300 U.S. 379 (1937). ↩︎
30. United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938). ↩︎
31. Brown v. Bd. of Educ., 347 U.S. 483 (1954); Loving v. Virginia, 388 U.S. 1 (1967); Richmond v. Croson Co., 488 U.S. 469 (1989); Gratz v. Bollinger, 539 U.S. 244 (2003); Students for Fair Admissions v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023); Graham v. Richardson, 403 U.S. 365 (1971). ↩︎
32. Foley v. Connelie, 435 U.S. 291 (1978); Ambach v. Norwick, 441 U.S. 68 (1979). ↩︎
33. Washington v. Davis, 426 U.S. 229 (1976); Arlington Heights v. Metro Housing, 429 U.S. 252 (1977). ↩︎
34. United States v. Virginia, 518 U.S. 515 (1996); MUW v. Hogan, 458 U.S. 718 (1982); Craig v. Boren, 429 U.S. 190 (1976). ↩︎
35. Vorchheimer v. Philadelphia, 430 U.S. 703 (1977); MUW v. Hogan, 458 U.S. 718, 720 n.1 (1982); United States v. Virginia, 518 U.S. 515, 534 n.7 (1996); Nguyen v. INS, 533 U.S. 53 (2001); Rostker v. Goldberg, 453 U.S. 57 (1981); Michael M. v. Super. Ct., 450 U.S. 464 (1981). ↩︎
36. Pers. Admin’r v. Feeney, 442 U.S. 256 (1979); Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974). ↩︎
37. San Antonio v. Rodriguez, 411 U.S. 1 (1973); Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 460 (1985) (Marshall, Brennan, and Blackmun, JJ., dissenting); id. at 451 (Stevens, J., and Burger, C.J., concurring); United States v. Windsor, 570 U.S. 744, 793 (2013) (Scalia, J., dissenting); Bd. of Retirement v. Murgia, 427 U.S. 307 (1976), United States v. Skrmetti, 145 S.Ct. 1816, 1829 (2025). ↩︎
38. Murgia, 427 U.S. 307; Rodriguez, 411 U.S. 1. ↩︎
39. Cleburne, 473 U.S. at 452 (Stevens, J., Burger, C.J.); id. at 460 (Marshall, Brennan, Blackmun, J.J.); Windsor, 570 U.S. at 793 (Scalia, J.). ↩︎
40. Bolling v. Sharpe, 347 U.S. 497 (1954); Adarand Constructors v. Peu00f1a, 515 U.S. 200 (1995). ↩︎
41. Matthews v. Diaz, 426 U.S. 67 (1976); Morton v. Mancari, 417 U.S. 535 (1974). ↩︎
42. Vaello-Madero, 596 U.S. at 178 n.4 (Thomas, J., concurring). ↩︎
43. DeShaney, 489 U.S. at 197 n.3 (1989); Castle Rock v. Gonzales, 545 U.S. 748 (2005). ↩︎
44. Green, Subsequent Interpretation and Application, supra at 254; Evan D. Bernick, Antisubjugation and the Equal Protection of the Laws, 110 Geo. L. J. 1, 36 (2021); Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 319–51 (2021); Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction 28–86 (2011). ↩︎
45. Christopher R. Green, Incorporation, Total Incorporation, and Nothing but Incorporation?, 24 Wm. & Mary Bill Rts. J. 93, 122–24 (2015). ↩︎
46. Thomas Lewin, A Practical Treatise on the Law of Trusts and Trustees 414 (3d ed. 1857); Christopher R. Green, Citizenship and Solicitude: How to Overrule Employment Division v. Smith and Washington v. Davis, 47 Harv. J.L. & Pub. Pol’y 465 (2024). ↩︎
47. Cong. Globe, 39th Cong., 1st Sess. 1758 (1866). ↩︎
48. Christopher R. Green, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause 137–38 (2015). ↩︎