Friday, October 28, 2005

Federal Government and Equality:

Over at Volokh, David Bernstein notes that the 14th Amendment with its Equal Protection Clause only applies to the states. Therefore, how could the Supreme Court rule, as it did in Bolling v. Sharpe, that the federal government is likewise constrained in its ability to discriminate (segregate schools)? Supposedly, the Due Process Clause of the 5th Amendment "reverse incorporates" the Equal Protection Clause against the federal government.

Sorry, I don't buy it. I also don't buy the notion of "Substantive Due Process." The Due Process Clauses of both Amendments are "procedural" clauses.

However, substantive norms of both liberty and equality are central to both the original founding and the 14th Amendment. Those substantive norms are properly contained in the Privileges or Immunities Clause of the 14th. The Equal Protection Clause too is a procedural clause, directed mainly against the executive branch of state governments demanding equal protection of whatever general laws happen to be on the books.

So does the P or I Clause then "reverse incorporate" against the federal government? No, the Declaration of Independence holds that all men are by nature equal. Equality as with liberty is a natural right. And Randy Barnett has aptly demonstrated (although with little discussion on the substantive right to equality) that the 9th Amendment guarantees our natural rights against the federal government.

The substantive norm of equality that constrains the federal government properly belongs in the 9th, not the 14th or 5th Amendments. Now, I've concluded this by my own logic and if I did read some more distinguished scholar originally putting forth this idea, I don't remember. But someone has got to have made this case before me? Anyone know?


Daniel said...

Many times, I have heard it suggested that the 9th Amendment is the obvious place for natural rights to reside, particularly as applied to the Federal government. But I have never seen or heard of a scholarly, or careful, consideration of the 9th Amendment. It makes little sense to look to notions like "substantive due process" or "penumbras and emanations", when the 9th Amendment makes it clear that there are unmentioned rights that are reserved to the people.

Jonathan said...

Randy Barnett has done great scholarly work demonstrating that natural liberty rights properly reside in the Ninth Amendment.

I'm not aware of any work demonstrating that natural equality rights properly belong their too.

The problems with the Equal Protection and Privileges or Immunities Clauses is that both of them clearly constrain the state governments.