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?