The Equal Protection Clause Guarantees Equality for All: A Reply to Chris Green

Chris Green argues that our amicus brief in Obergefell v. Hodges should have focused on the Privileges or Immunities Clause rather than the Equal Protection Clause as the source of the Fourteenth Amendment’s guarantee of equality.  While we at CAC have long argued for breathing new life into the Privilege or Immunities Clause’s protection of substantive fundamental rights, and we are always glad to see renewed attention to that Clause, Green’s argument is mistaken.  The Fourteenth Amendment’s guarantee of equality for all is contained in the Equal Protection Clause.

This is the most natural reading of the text, and is amply reflected in the debates over the Fourteenth Amendment.    In what is perhaps the most important speech on the Fourteenth Amendment, Senator Jacob Howard, quite explicitly, located the Fourteenth Amendment’s command of equality for all in the equal protection guarantee, whose language, Howard explained, protects “not merely a citizen of the United States, but any person, whoever he may be.”  Howard continued: “This abolishes all class legislation and does away with the injustice of subjecting one caste of persons to a code not applicable for all.”  While Howard also spoke at length about the Privileges or Immunities Clause and its protection of substantive fundamental rights, he located the guarantee of equality for all in the Equal Protection Clause.   As Howard’s speech and others quoted in our brief show, the Equal Protection Clause, not the Privileges or Immunities Clause, accomplishes the Framers’ goal of “securing an equality of rights to all citizens of the United States, and of all persons within their jurisdiction.” 

Green faults our brief for relying on statements made by the Framers of the Fourteenth Amendment as well as press coverage that affirmed that the Amendment would ensure equality under the law and equality for all citizens.  Those statements, Green suggests, could only have referred to the Privileges or Immunities Clause.   But that conclusion hardly follows.  Preventing states from treating some groups of Americans as second-class citizens was a core goal of the Equal Protection Clause.  But it was not the only goal, and that it why the Equal Protection Clause guarantees both to citizens and non-citizens equality under the law, forbidding state majorities from discriminating against disfavored persons. 

Green’s reading of the Fourteenth Amendment would leave non-citizens subject to state-sponsored discrimination, a result the Framers of the Fourteenth Amendment specifically rejected.  As our Obergefell brief discusses, the very first statute passed to enforce the Fourteenth Amendment was designed to eliminate discrimination by the states against non-citizens, primarily Chinese immigrants in the Western United States.  Defending this 1870 measure, John Bingham explained that “immigrants” were “persons within the express words” of the Fourteenth Amendment and “entitled to the equal protection of the laws.”  Landmark equal protection rulings protecting the rights of immigrants, such as Yick Wo v.  Hopkins and Ho Ah Kow v. Nunan, would have come out the other way if the Privileges or Immunities Clause were the source of the Fourteenth Amendment’s guarantee of equality.    Green misses this key point. 

We agree with Green about the importance of “precision in our discussions of ‘text and history.’”  But it is Green who gets the text and history of the Fourteenth Amendment wrong in failing to recognize the full scope and sweep of the equal protection guarantee.  The Fourteenth Amendment’s Equal Protection Clause guarantees equality for all, protecting all persons from state-sponsored discrimination. 

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