On Equality and the Federal Government: A Reply to Somin

In a recent posting, Ilya Somin says the following: “Beginning with the famous case of Bolling v. Sharpe (1954), the Supreme Court retroactively applied the [Fourteenth] Amendment’s restrictions on racial discrimination to the federal government. But no one imagined that the amendment applied to the federal government at the time it was enacted.”

In Chapter 4 of my new book, I offer a different account:

The [Fourteenth] Amendment’s first sentence creates rights of equal citizenship that apply against the feds as well as states. Its text provides that “[a]ll persons born . . . in the United States” are by that fact alone “citizens of the United States” — and thus, equal citizens at birth. This sentence in effect constitutionalized the Declaration of Independence’s “self-evident” truth — a truth that Lincoln had famously stressed (and glossed) at Gettysburg — that all men (that is, persons) are created (that is, born) equal. Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence.

The Civil Rights Act of 1866 — a companion statute passed by the same Congress that proposed the Fourteenth Amendment, in the same season and by nearly the same vote — featured language virtually identical to this sentence, and explicitly linked this language to a racial-equality rule binding both state and federal officialdom: “All persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to . . . full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.”

Beyond the Fourteenth Amendment, the anti-nobility clauses of the Founders’ Constitution explicitly applied against both state and federal officials, as did the Fifteenth Amendment, which demanded racial equality not just in Election Day voting but also in other voting venues such as jury rooms and legislative assemblies.

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