The Fiduciary Foundations of Federal Equal Protection

Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of the general public, but to enrich select interests. President Jackson wrote: “There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.”

This was the first use of the phrase “equal protection” in an American political document. Three and half decades later, the Fourteenth Amendment forbade States to deny to anyone the “equal protection” of the law.

In 1954, the U.S. Supreme Court ruled in Bolling v. Sharpe that the D.C. public schools could not be racially segregated. The Court held that the Fifth Amendment’s Due Process clause makes the principle of equal protection applicable to the federal government. Bolling was a hastily-written opinion, and it shows. Over the years, Bolling has been derided for creating “reverse incorporation”–as a good result that is hard to defend intellectually, other than by conceding the Supreme Court the power to act as Platonic Guardians.

That view is challenged in a new article by Gary Lawson (BU), Guy Seidman (Interdisciplinary Center, Herzliya, Israel) and Rob Natelson (Independence Institute). Their article “The Fiduciary Foundations of Federal Equal Protection” The abstract explains:

that a federal equal protection principle is not only consistent with the Constitution’s original meaning, but inherent in it. The Constitution was crafted as a fiduciary document of the kind that, under contemporaneous law, imposed on agents acting for more than one beneficiary—and on officials serving the general public—a well-established duty to serve all impartially. The Constitution, like other fiduciary instruments, imposes a standard of equal treatment from which lawmakers and officials cannot depart without reasonable cause. Although the Constitution’s original meaning does not precisely define the answers to all “equal protection” cases, and does not necessarily prescribe norms identical to those of existing equal protection jurisprudence, it clearly does prohibit racial discrimination of the kind at issue in Bolling.

In the Founding Era, the understanding of the federal government as the fiduciary agent of the People was well understood. (See, e.g., Hamilton’s Federalist 78.)  Today, the principle is taught by few constitutional law professors, mainly because they themselves are unaware of it. “The Fiduciary Foundations of Federal Equal Protection” is an important step forward in the recovery of modern academic understanding of the Original Understanding of the Constitution.