Hamburger on Equal Protection:

I've been re-reading Philip Hamburger's Magnum Opus, Separation of Church and State and reading up on the man himself. I have no idea what Hamburger's personal politics are, but his legal scholarship seems to be of the strict positivist, Raoul Berger mode. Berger was a brilliant law professor and I think a liberal in his political views, but became sort of a maverick in the profession for endorsing a very conservative, positivist view of constitutional history and interpretation. Among his more controversial claims were that 1) the 14th Amendment does not incorporate the Bill of Rights (something I think Akhil Amar refutes, or at least gives a plausible alternative to in his seminal book on the matter), and 2) no matter how vile the practice may have been, the segregated schools in Brown v. Board of Edu. were not unconstitutional.

Apparently Hamburger, chiefly known for his work on the Establishment Clause, has done groundbreaking work on the original meaning of the concept of Equal Protection as well. [Note, I've never read any of these papers.] Here is Tom West with a summary (in a very thoughtful review of Hamburger's Separation book) of Hamburger's research on Equal Protection:

He has demonstrated that the American Founders' understanding of "equal protection" and "civil rights" is quite different from the understanding of those terms today. ("Equal protection" emphatically did not mean "equal treatment" or nondiscrimination; it meant only that all persons were equally to be protected against injury to life, liberty or estate.)

If I am reading this correctly, "Equal Protection" would mean equal protection of those general laws which are already on the books -- civil laws on contract, tort, property, and criminal laws against murder, assault, theft and the like -- which protect individuals' "lives, liberties, and estates."

According to this understanding of Equal Protection, Brown v. Board of Education clearly was wrongly decided. In order to get to the point where Brown was rightly decided, "Equal Protection" must mean "equal treatment" or nondiscrimination, at least with regard to race.

Now, one could make the case -- I could see Amar or Michael McConnell making it -- that perhaps Hamburger is correct on how the Founders of 1787 viewed the notion of Equal Protection, nonetheless, the Founders of 1868 gave a more expansive meaning to the concept. Berger, I'm pretty sure endorsed the notion that Equal Protection in the 14th Amendment meant exactly how West/Hamburger describe the meaning of it during the original Founding era. I may be wrong, but based on what I have read of Hamburger so far, I get the impression that he too would endorse the original meaning of Equal Protection in 1868 closely tracking the meaning in 1787.

And this is relevant because, as Jack Balkin notes, any theory of constitutional jurisprudence which holds Brown v. Board to be wrongly decided is simply not viable. But original expectation originalism (did the Founders of Amendment X consciously expect that they were illegalizing practice Y?) does indeed hold Brown v. Board, and certainly Loving v. VA, to be improperly decided.

There are other varieties of originalism -- for instance, those advanced by Akhil Amar, Randy Barnett, Michael McConnell, and others which involve taking the text and reading it at a higher level of abstraction to produce results not quite what the original framers expected but certainly consistent with the original meaning of the text and underlying ideals -- which are far more viable.

The problem for some "conservative" originalists, though -- this latter method can yield unwanted results and vindicate some of the so-called "activist" decisions of the Supreme Court. Take for instance, James Madison's meanderings on the concepts of equal protection and the Establishment Clause in his Detached Memoranda. Madison says in no uncertain terms: "The Constitution of the U. S. forbids everything like an establishment of a national religion....The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles." Now, this isn't to say that Madison's views are dispositive or even that he's right. But simply to show that one can begin with the original meaning of the text and certain constitutional ideals and end up at a place which is not where the majority of framers and ratifiers expected to be.

Indeed, the Framers of both the original Constitution and the 14th Amendment spoke of religious equality as well. Madison tried to get such a standard to apply against the states in his original draft of the First Amendment. Though that was voted down, we do have, don't forget, an "Equal Protection" Clause in the 14th Amendment which applies to religion as well as race.

Now, if we apply the concept of "Equal Protection" to religion, specifically the understanding in Brown which requires at the very least, "equal treatment" or nondiscrimination, what are some of the results we may get? According to West, a non-discrimination standard among religions means: "Today, support of 'religion in general' would include taxpayer funding of Wiccans, Satanists, Muslims (including those who teach hatred of America), and worshippers of that favorite goddess of some feminists, 'Our Sweet Sophia.'" And a standard of religious neutrality means:

"Oddly, Scalia and Thomas, who normally follow the original meaning of the Constitution, appeal to the famous neutrality principle cooked up by Supreme Court liberals in the Everson case (1947) and mandated (more or less) by the Court ever since. But there is simply nothing in the Constitution that requires government to be neutral on the subject of religion. Otherwise, it really would be unconstitutional for public schools to lead recitations of the Pledge of Allegiance. "One nation under God" is not neutral. It is pro-God."

West is being disingenuous when he writes "there is simply nothing in the Constitution...." He uses these results as reductio ad absurdums to argue against a standard of religious equality. However, I'm sure he is aware of the 14th Amendment's Equal Protection Clause. And based on his knowledge of Jeffersonian-Madisonian natural rights theory, West realizes that the "equal rights of conscience" -- again, something Madison tried to put in the First Amendment to apply against the states -- is part of the organic natural law that founds this nation, and which West purportedly believes should be granted constitutional status.