Academic journal article
By Harrison, John
Constitutional Commentary , Vol. 13, No. 3
In Job God implies that he, unlike his interlocutor, can catch Leviathan on a hook.(1) Maybe it is presumptuous for mortals to suggest that the actions of government can be disciplined by fine legal distinctions devised by human artifice. Michael McConnell's article, however, asks us to try.(2) McConnell's historical claims are ably discussed elsewhere.(3) I will try to improve our understanding of a technical legal point on which the argument for Brown rests: the claim that the Fourteenth Amendment, within its area of application, forbids all race-respecting rules, rather than just those race-respecting rules that do not treat people of different races symmetrically. If that is true, and if public education is a privilege of state citizenship, then the argument in favor of Brown is very strong.(4) My approach to this question will be a bit roundabout, but I think the detour will be a fruitful one. As to the specific problem of separate but equal, my suggestion is that proponents of Jim Crow-type laws, which discriminate by race but do so symmetrically, may have believed that their understanding of the Fourteenth Amendment better accommodated the fundamental fact that the amendment does not refer to race, color, or previous condition of servitude. I think that argument is incorrect, however, and if the amendment does indeed yield some kind of ban on race discrimination, its text is most plausibly read as a ban on all such distinctions, with no exception for symmetrical discrimination.
I. EQUALITY AND DISCRIMINATION
Analysis of the Fourteenth Amendment involves two different kinds of constitutional rules: those that require equality among all persons (or all citizens), and those that forbid discrimination. Although these are thought to be closely related, they exhibit important differences.
A. EQUALITY AS A SIDE EFFECT OF RULES
How might the Constitution go about requiring that all citizens be treated the same with respect to some subject matter? One approach would be simply to lay down rules concerning that subject matter. Such rules, if put in universal form, will produce at least one description under which everyone is the same.(5) If the rule is that the Ministry of Fruit must give everyone an apple, and the rule is complied with, then everyone will be the same as to the question, whether one has been given an apple. If the rule is that no one may commit arson (or sleep under a bridge), then everyone will be the same as to the question whether one is allowed to commit arson or sleep under a bridge. To continue in that vein, all individuals have the same jury trial right under the Sixth Amendment in that there is a formulation of the jury trial provision that applies to everyone.
With sameness, of course, comes difference. If everyone is given one apple, it is very likely that people will differ as to the extent to which the government has satisfied their hunger for apples. If everyone is forbidden to commit arson, people may differ in the extent to which the government has forbidden their livelihood; it is a cliche to point out that under the bridge law people will differ in the extent to which the government has kept them from sleeping where they would like to sleep. Moreover, there can be difference within sameness--some people may get bigger apples than others, and vagueness about sameness--if A receives an apple and B receives the halves of two different apples, it may not be clear whether they have both received an apple.
The important point, though, is that rules can easily produce sameness under some description without mentioning sameness or equality. Anyone in 1866 who actually thought that the Privileges or Immunities Clause of the Fourteenth Amendment established certain rules of private law for American citizens also thought that it established the same rules of private law for all American citizens; on some description that would have been right. …