Editing Equal Protection Clause (section)

== Ratification ==
With the return to originalist interpretations of the Constitution, many wonder what was intended by the framers of the reconstruction amendments at the time of their ratification. The Thirteenth Amendment abolished slavery but to what extent it protected other rights was unclear.<ref name=":3">{{Cite journal|author-link1=Michael Zuckert|last=Zuckert|first=Michael P.|date=1992|title=Completing the Constitution: The Fourteenth Amendment and Constitutional Rights|journal=Publius|volume=22|issue=2|pages=69–91|doi=10.2307/3330348|jstor=3330348}}</ref> After the Thirteenth Amendment the South began to institute Black Codes which were restrictive laws seeking to keep black Americans in a position of inferiority. The Fourteenth amendment was ratified by nervous Republicans in response to the rise of Black Codes.<ref name=":3" /> This ratification was irregular in many ways. First, there were multiple states that rejected the Fourteenth Amendment, but when their new governments were created due to reconstruction, these new governments accepted the amendment.<ref name=":4">{{Cite news|url=https://supreme.justia.com/cases/federal/us/307/433/#tab-opinion-1936403|title=Coleman v. Miller, 307 U.S. 433 (1939)|work=Justia Law|access-date=2018-11-30|language=en}}</ref> There were also two states, Ohio and New Jersey, that accepted the amendment and then later passed resolutions rescinding that acceptance. The nullification of the two states' acceptance was considered illegitimate and both Ohio and New Jersey were included in those counted as ratifying the amendment.<ref name=":4" />

Many historians have argued that Fourteenth Amendment was not originally intended to grant sweeping political and social rights to the citizens but instead to solidify the constitutionality of the 1866 Civil rights Act.<ref name=":0">{{Cite journal|last=Perry|first=Michael J.|date=1979|title=Modern Equal Protection: A Conceptualization and Appraisal|journal=Columbia Law Review|volume=79|issue=6|pages=1023–1084|doi=10.2307/1121988|jstor=1121988}}</ref> While it is widely agreed that this was a key reason for the ratification of the Fourteenth Amendment, many historians adopt a much wider view. It is a popular interpretation that the Fourteenth Amendment was always meant to ensure equal rights for all those in the United States.<ref name=":1">{{Cite journal|last=Boyd|first=William M.|date=1955|title=The Second Emancipation|journal=Phylon|volume=16|issue=1|pages=77–86|doi=10.2307/272626|jstor=272626}}</ref> This argument was used by [[Charles Sumner]] when he used the Fourteenth Amendment as the basis for his arguments to expand the protections afforded to black Americans.<ref>Sumner, Charles, and Daniel Murray Pamphlet Collection. . Washington: S. & R. O. Polkinhorn, Printers, 1874. Pdf. https://www.loc.gov/item/12005313/ .</ref>

Although the equal protection clause is one of the most cited ideas in legal theory, it received little attention during the ratification of the Fourteenth Amendment.<ref>{{Cite journal|last1=Frank|first1=John P.|last2=Munro|first2=Robert F.|date=1950|title=The Original Understanding of "Equal Protection of the Laws"|journal=Columbia Law Review|volume=50|issue=2|pages=131–169|doi=10.2307/1118709|jstor=1118709|url=https://digitalcommons.law.yale.edu/fss_papers/4037}}</ref> Instead the key tenet of the Fourteenth Amendment at the time of its ratification was the [[Privileges or Immunities Clause]].<ref name=":0" /> This clause sought to protect the privileges and immunities of all citizens which now included black men.<ref>{{Cite web|url=https://www.launchknowledge.com/constitution/|title=Constitution of the United States - We the People|website=launchknowledge.com|date=10 September 2020 |language=en-us}}</ref> The scope of this clause was substantially narrowed following the [[Slaughter-House Cases|Slaughterhouse Cases]] in which it was determined that a citizen's privileges and immunities were only ensured at the Federal level and that it was government overreach to impose this standard on the states.<ref name=":1" /> Even in this halting decision the Court still acknowledged the context in which the Amendment was passed, stating that knowing the evils and injustice the Fourteenth Amendment was meant to combat is key in our legal understanding of its implications and purpose.<ref>{{Cite news|url=https://supreme.justia.com/cases/federal/us/83/36/#tab-opinion-1967657|title=Slaughterhouse Cases, 83 U.S. 36 (1872)|work=Justia Law|access-date=2018-11-10|language=en}}</ref> With the abridgment of the Privileges or Immunities clause, legal arguments aimed at protecting black American's rights became more complex and that is when the equal protection clause started to gain attention for the arguments it could enhance.<ref name=":0" /> &nbsp;

During the debate in Congress, more than one version of the clause was considered. Here is the first version: "The Congress shall have power to make all laws which shall be necessary and proper to secure ... to all persons in the several states equal protection in the rights of life, liberty, and property."<ref name="Kelly">Kelly, Alfred. "[http://www.utexas.edu/law/journals/tlr/sources/Issue%2087.1/fn7.kelly.pdf Clio and the Court: An Illicit Love Affair]{{dead link|date=September 2017 |bot=InternetArchiveBot |fix-attempted=yes }}", ''The Supreme Court Review'' at p. 148 (1965) reprinted in ''The Supreme Court in and of the Stream of Power'' (Kermit Hall ed., Psychology Press 2000).</ref> Bingham said about this version: "It confers upon Congress power to see to it that the protection given by the laws of the States shall be equal in respect to life and liberty and property to all persons."<ref name="Kelly" /> The main opponent of the first version was Congressman [[Robert S. Hale]] of New York, despite Bingham's public assurances that "under no possible interpretation can it ever be made to operate in the State of New York while she occupies her present proud position."<ref>[[Alexander Bickel|Bickel, Alexander]]. "[http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4958&context=fss_papers The Original Understanding and the Segregation Decision]", ''[[Harvard Law Review]]'', Vol. 69, pp. 35-37 (1955).  Bingham was speaking on February 27, 1866.  ''See'' [http://memory.loc.gov/ll/llcg/071/0100/01061064.tif transcript].</ref>

Hale ended up voting for the final version, however. When Senator [[Jacob Howard]] introduced that final version, he said:<ref>Curtis, Michael. "[http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2059&context=bclr Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment]", ''Boston College Law Review'', Vol. 38 (1997).</ref>

<blockquote>It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?</blockquote>

The [[39th United States Congress]] proposed the Fourteenth Amendment on June 13, 1866.  A difference between the initial and final versions of the clause was that the final version spoke not just of "equal protection" but of "the equal protection of the laws".  John Bingham said in January 1867: "no State may deny to any person the equal protection of the laws, including all the limitations for personal protection of every article and section of the Constitution{{nbsp}}..."<ref>Glidden, William.  ''[https://books.google.com/books?id=XROaAAAAQBAJ&pg=PA79 Congress and the Fourteenth Amendment: Enforcing Liberty and Equality in the States]'', p. 79 (Lexington Books 2013).</ref>  By July 9, 1868, three-fourths of the states (28 of 37) ratified the amendment, and that is when the Equal Protection Clause became law.<ref>{{cite web|url=http://www.usconstitution.net/constamrat.html|title=Ratification of Constitutional Amendments|access-date=February 24, 2007|last=Mount|first=Steve|date=January 2007}}</ref>