Equal Protection of the Laws

Originally posted on May 31, 2020

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” —Section 1 of the Fourteenth Amendment to the U.S. Constitution.

With these words in mind, I have three points to make:

1. It is evident that the 14th Amendment, and thus the Constitution of the United States, is not being uniformly upheld. This is clear in two particular cases and implied in the aggregate.

George Floyd and Ahmaud Arbery were deprived of their lives without due process of law. Whether or not they actually committed the offenses that their killers accused them of is irrelevant; they were never given the chance to defend themselves in court. Mr. Arbery, after his death, seems moreover to have been denied the equal protection of the laws, insofar as his killing was not prosecuted for months. The argument that Mr. Arbery was killed in self-defense because he attempted to seize a weapon does not have moral weight. Mr. Arbery was cornered by armed strangers; he could not be sure of their intention; he himself possessed an inherent right to self-defense. His decision to fight may have been tactically ill-judged, but it was morally justified.

In the aggregate, credible figures have accumulated over the past several years that black men are far more likely than others to be the subject of law enforcement action, and form a disproportionate share, relative to their proportion of the country’s population, of those killed in the course of such encounters. Likewise, they comprise a disproportionate share of prison inmates. This suggests unequal enforcement of the laws, resulting in many instances in the deprivation of life without due process of law, and perhaps also the deprivation of liberty with inadequate due process.

That is not to say that all law enforcement action involving black men, or any other subset of Americans, is unjust. Rather, it is the persistent disproportionality that is suspect. To be comfortable with those aggregate figures, one would have to assume that one type of American is substantially more inclined to criminality than the rest of his countrymen. That assumption is contrary to the principle, fundamental to republican thought, that human nature is universal and constant; and thus the failings of human nature ought naturally to be found in similar proportion across ethnic or racial groups.

Or, as Frederick Douglass put it more than a century ago:

“I want to be understood at the outset. I do not pretend that negroes are saints or angels. I do not deny that they are capable of committing the crime imputed to them, but I utterly deny that they are any more addicted to the commission of that crime than is true of any other variety of the human family.” (“Lessons of the Hour” Speech, January 9, 1894).

This problem, as the date of Mr. Douglass’ speech reveals, is not new. But the fact that it lingers today ought to trouble all patriotic Americans, whose loyalty is due to the Constitution of the United States and the principles it contains.


2. Our Republic is not backward or malevolent. It has reformed itself again and again over the years, gradually making moral progress. It has done so because its citizens are free and willing to protest its failings, and to cast their votes in pursuit of its improvement. That fact must not be taken for granted; citizens of many other countries cannot or do not speak out, protest, or vote. It is also why the Constitution must be taken as a whole. Its different parts reinforce each other: upholding the 1st Amendment shall aid the fulfillment of the 14th, and vice versa. The converse is also true: discarding the entire “system” because one part is not working as it should shall only render the deficiency more difficult to solve.

Put differently, a country at any given time is the sum of its people and the principles it is founded upon. Our country’s principles – many expressed in the 14th Amendment – are good. That leaves us citizens, the imperfect implementers of those principles, at fault for its failings. Yet self-hate rarely accomplishes anything. Hard work does. So do not despise your country; expect better of it.


3. Wanton destruction impedes the betterment of our Union. Sympathy with the grievance is not a reason to condone riots. Yes, murder is a more severe crime than destruction of property; but in no way does the murder of some permit or excuse burning the livelihoods of others, especially those who are entirely unconnected to the crime. Rather, rioting is directly contrary to the 14th Amendment: it deprives citizens of life, liberty, or property without due process of law. It is unjust; it must stop.

If it will not stop, but instead must be stopped by lawful authorities, that ought to be done only with proportionate means, without vindictiveness, and without harm to the peaceable protestors who are exercising one of their most fundamental liberties.

This is merely my appraisal of the principles. As this issue plays out on the streets, in the courts, and in the halls of government, it is more complex, more emotional, and more dangerous. But the principles ought nonetheless to guide us.

No. 1 – On Fundamental Liberties

No. 9 – On Citizenship