Volume 110
Issue 1
October '21

Antisubjugation and the Equal Protection of the Laws

Written By: Evan D. Bernick

Abstract

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. This Article argues that neither of those things is true as a matter of the original meaning and purpose of the Equal Protection Clause. It then contends that constitutional doctrine should be reconstructed to realize the Constitution’s promise of “the equal protection of the laws.”

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. At the same time, the Court has insisted that the Equal Protection Clause generally prohibits unjustified, intentional discrimination.

Scholars have long questioned these features of Fourteenth Amendment law. 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.

This Article contends that the Equal Protection Clause guarantees both nondis-criminatory law enforcement and nondiscriminatory laws. The Clause also prohibits states from interfering with any protection provided by constitutionally proper federal laws. Under the Clause, state governments are: 

(1) required to impartially execute nondiscriminatory state laws that protect life, liberty, and property; 

(2) required to provide people with impartial access to the courts; 

(3) prohibited from enacting discriminatory laws that unreasonably burden or benefit the life, liberty, and property of some people more than others; 

(4) prohibited from denying people life-, liberty-, and property-related protection that is provided by constitutionally proper federal laws. 

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