Document Type


Publication Date



It is by now an open secret that current interpretations of the meaning of the equal protection clause of the Fourteenth Amendment, and of its relevance and mandate for contemporary problems of racial, gender, and economic justice, are deeply and, in a sense, hopelessly conflicted. The conflict, simply stated, is this: to the current Supreme Court, and to a sizeable and influential number of constitutional theorists, the "equal protection of the laws" guaranteed by the Constitution is essentially a guarantee that the categories delineated by legal rules will be "rational" and will be rationally related to legitimate state ends. To this group of jurists, the relevance of the equal protection clause to issues of racial justice rests on the important complementary minor premise to this guarantee of rationality: the claim, both descriptive and normative, that legislative distinctions based upon race can simply never be rational because there are no differences between the races that can in any way be relevant to state purposes, and, consequently, racial differentiation in any context cannot be a legitimate state goal. This view will be referred to as the "colorblind" view.

For a second group of jurists, including the liberal dissenters on the Court and a sizeable number of constitutional theorists in law schools, the "equal protection" clause of the Fourteenth Amendment requires not "rationality" in legislation but, rather, substantive justice. For this group the guarantee of equal protection is a constitutional imperative for the states and Congress to take substantive steps toward the eradication of the unjust subordination of one group of citizens by another, including African-Americans and other peoples of color by whites, women by men, and gays and lesbians by heterosexuals. On this view, the equal protection mandate and the Fourteenth Amendment is historically grounded not in the pernicious idea of racial difference but, rather, in the pernicious practice of racial subordination: the willful and continuing attempt of white people, with the willing acquiescence of state governments, to subordinate, deny, oppress, and use black people for their own ends. The equal protection mandate for these theorists is a guarantee that either the states or, in the breach, Congress will act to reverse these patterns of subordination. This view will be referred to as the "substantive anti-subordination" view.

One purpose of this paper is to argue against both of these understandings of equal protection and to introduce a quite different interpretation -- a view grounded in human nature and governmental obligation held by the abolitionists of the early and mid-nineteenth century. These abolitionists, at least according to a number of historians, -- propagated and popularized the phrase "equal protection of the law" in the decades immediately preceding the Civil War and the Reconstruction amendments. I will ultimately argue that this abolitionist understanding of equal protection, and of the Fourteenth Amendment, is truer to both the plain language and the history of the Amendment than either the formal colorblind view or the substantive anti-subordination view briefly outlined above. Before doing so, however, I want to discuss in a little more detail the nature of the conflict between the two conceptions that dominate current case law and scholarship, why I think that conflict is quite distinctive in our constitutional jurisprudence, and suggest why it seems to me to be imperative that we somehow find a way to break the deadlock. In the first section that follows, I will therefore discuss the schism in our current understanding of equal protection, and I will then introduce, by way of metaphor, the rather different abolitionist understanding of the phrase "equal protection." In the next two sections, I will discuss modern applications of the abolitionist understanding and structural and intellectual barriers to its modern implementation.

Publication Citation

94 W. Va. L. Rev. 111 (1991)