Mike Rappaport has a post at the Liberty Law Blog making a seemingly straightforward but surprisingly underappreciated point: There is good reason to think that the Fourteenth Amendment’s equality requirement was not originally meant to apply to the federal government.
People frequently try to challenge various originalist views about equality by pointing to the actions of the Reconstruction Congress. Affirmative action must be permitted by the original meaning of the Fourteenth Amendment, they will say, because the Reconstruction Congress enacted race-conscious legislation. (Although actually it did so much less than is commonly supposed.) Or the original meaning of the Fourteenth Amendment must have permitted school segregation, they will say, because Congress did not stop segregation in the DC schools.
To be fair, some originalists are no better about this. Justices Thomas and Scalia both joined the Court’s opinion in Adarand, which imposed strict scrutiny on federal affirmative action, even though Justice Scalia had previously given some perfectly plausible reasons for thinking that the federal government has more freedom to engage in race-conscious decision making than states do. The Scalia/Thomas vote in Adarand could be justified on a certain attitude toward precedent, but they can be criticized for not explaining or justifying it.
Of course there is judicial precedent reverse-incorporating the equal protection clause against the federal government; but originalists often discuss original meanings that are currently in conflict with precedent. And there are even some quasi-originalist arguments justifying an equality requirement for the federal government. Co-blogger David Bernstein has discussed the Due Process Clause; Ryan Williams has discussed the Citizenship Clause; Gary Lawson, Guy Seidman, and Rob Natelson have discussed the backdrops of fiduciary law. These views might even be right (although I do not think so). But among originalists, they are the minority views. The most straightforward reading is that nothing in the Constitution imposes a general equal treatment obligation on the federal government.
This point is probably no surprise to careful readers of this blog (see, e.g., these previous posts by Ilya and David). But I am still surprised when I see people make this mistake, or see people who assume that Adarand and Bolling v. Sharpe are regarded as sacrosanct.
I wonder if it is because there has been little effort to explain why it actually makes sense to have an equality requirement at one level of government but not another. It seems to me that it makes a great deal of sense for the Congress that drafted the Fourteenth Amendment to have trusted itself to know the difference between benign and malign discrimination, but not to have trusted the states. Or maybe one could say that they did not trust the courts to second-guess Congress’s judgments about what kinds of discrimination were justifiable; but they trusted the states even less than they trusted the courts.