Long, long ago in a blog far away (the archives of which appear to be no longer available), I was introduced by a lawyer to the state of 14th Amendment jurisprudence. I've found a page on-line here that says roughly the same thing as what he said.
Here follows a slightly uncharitably worded summary of my own: The 14th Amendment says that states may not deny to any person the equal protection of the laws. This seems to mean that the states can't treat people unequally by law. But how can we possibly apply that, since all laws involve treating people unequally? A law against theft treats thieves differently from non-thieves. So what are we going to do? Hey, I know. Let's create three stages of scrutiny that the federal courts will apply to state laws, based on whether or not the state laws treat people unequally on the basis of "suspect categories." The most glaringly suspect category will be race or national origin, because the 14th Amendment was originally passed for the purpose of protecting former slaves. But gender is now also a suspect or semi-suspect category, and being disabled is becoming a suspect category as well. If your state law treats people unequally on the basis of something that hasn't been designated a suspect category, your state is in luck. That law only has to pass minimal scrutiny or the "rational basis test" by the federal courts if challenged as unconstitutional. But if your law treats people unequally on the basis of something designated a suspect category, then it has to pass strict scrutiny, which means it's prima facie unconstitutional, and you'd better have an overwhelmingly important state interest that it serves or it's going to be struck down. Intermediate scrutiny is somewhere in the middle.
Got all of that?
No less a jurist than Robert Bork (for whom I have the highest respect) has used similar reasoning to argue that the 14th Amendment should apply only to distinctions based on race. In other words, he accepts the basic structure of the reasoning just given but argues that, to prevent judges from making sweeping judgements about the reasonableness of distinctions, there should be only one type of "suspect group"--race or ethnicity:
All laws, all statutes, contain classifications. That is, they treat people or behavior differently or the same according to characteristics the legislature deems relevant....When a judge assumes the power to decide which distinctions made in a statutes are legitimate and which are not, he assumes the power to disapprove of any and all legislation, because all legislation makes distinctions....The case for confinding the amendment to statutory distinctions drawn in terms of race or ethnicity is that permitting the judges to choose subjectively which grounds of classification they will treat like race confers upont he courts a power to tell legislatures how all of their statutes on every subject must be written. That, we may be certain, was not what th eratifiers of the fourteenth amendment had in mind. (Tempting of America, pp. 65-66)
Okay, so let's think of some of the implications of the three-tier system, or even of a two-tier system in which the only suspect category is race: Suppose some really liberal state, like New York, passes a law that says that if you drag a guy out of his car and bash his head in or shoot him, and he had a leftover Bush/Cheney bumper sticker on the back of his car from the 2004 election, you will receive no more than two years in prison, max. We'll call this a Bush Derangement Syndrome law. Now, this law is obviously a case of the state's denying to some persons (those with Bush bumper stickers) the equal protection of the laws--specifically, the protection of laws against murder. Right? So it's unconstitutional on its face, right? Well, wrong. People with Bush bumper stickers aren't a "suspect group," so the law in question would receive only minimal scrutiny. That is--note this--such a law would not be prima facie unconstitutional. Now, you might argue that it couldn't possibly pass the minimal scrutiny "rational basis" test. Maybe not, though (and in most cases this is to their credit) conservative justices like Scalia tend to make minimal scrutiny very minimal indeed. And we can work up some smooth-sounding state interest. Let's see: It is in the interest of the State of New York to deter people from having Bush campaign bumper stickers on their cars, because doing so tends to cause road rage in this state.
But that's really beside the point, because even if such a law didn't survive minimal scrutiny in practice, my point is that it just seems nuts to have such a law be treated only to minimal scrutiny to begin with and therefore to be treated as prima facie constitutional rather than prima facie unconstitutional when it is so obviously a violation of the provisions of the 14th Amendment.
The problem, it seems to me, begins in the second sentence of my summary of the reasoning--namely, that the 14th Amendment appears to prohibit the states from treating people unequally under the law. Now, that just isn't what it says, so it doesn't appear that way to me even to begin with. It says "deny to any person the equal protection of the laws." Isn't the problem there that we start by changing "equal protection of the laws" to "equal treatment," and then, because we realize that would strike down all laws, we have to start doing complicated things in jurisprudence to limit the damage? It seems to me that it would make a big difference if we started instead by emphasizing the concept of the protection of the laws. Positive laws often protect people from specific, active, manifest harms. So why shouldn't the idea be that, if you have a law that protects people from some manifest harm perpetrated by private or public entities, it must protect them equally? If you have no such law against some form of harm for anyone in your state, or if we're talking about state discrimination in passing out some benefit (like a job, for example), this would not be prima facie a violation of the 14th Amendment. This would exactly reverse the present status of, say, gender discrimination and laws allowing murder of Bush fans. If a state discriminates against women in hiring state troopers, for example, this would under the present system be subject to at least intermediate and possibly strict scrutiny, depending on how "suspect" you think the category of gender now is. But under my radical new proposal, such discrimination would be prima facie constitutional under the 14th Amendment, because it doesn't concern an existing state law that protects some persons but not others from a manifest harm. The Bush Derangement Syndrom law, on the other hand, would be facially unconstitutional, because it involves giving Republicans or other Bush fans less protection from murder than is given to other people under the laws of that state.
Let me bring this from the realm of fantasy into the real world. Wesley J. Smith mentioned a case a few months ago in which a judge threw out a case of a newborn infant who was found in a dumpster with air in his lungs, which would usually be considered to indicate that he was born alive. Note: It wasn't that the case came to trial and, at the sentencing stage, some sort of mitigating circumstances were brought in and the mother given a reduced sentence on that basis. No, the judge threw the case out ab initio. To my mind, this is very little different from the law's turning a blind eye to the lynching of a black man. Such a refusal by the judge to allow the prosecution to proceed is, to my mind, pretty clearly a case of denying to a person (the newborn baby) the equal protection of the law.
Here I'm simply setting aside the interpretive question, on which Scalia and Bork take a position unpopular with some conservatives, of whether "person" in the 14th Amendment includes the unborn. This child was born and was obviously a "person" under the original meaning of that amendment. No one would contest that. Peter Singer hadn't come on the scene yet when the 14th Amendment was passed, thank God.
Now, let's imagine a state statute that enshrined the judge's practice in positive law, that said, for example, that if a born infant is killed within the first 24 hours after birth by his own mother, she won't be prosecuted. Such a law would, as far as I can tell, face only minimal scrutiny under the present three-tier system of 14th Amendment jurisprudence, because newborn infants aren't a "suspect group."
I should note that this looks to be not so very far off from the actual laws in several foreign countries. Search "infanticide" in this Wiki article. Romania and Finland seem especially egregious. They provide lesser sentences for infanticide within the first year or two without even bothering to stipulate that this applies only if the mother was suffering from some form of diminished responsibility like post-partum depression. The UK and Israel require at least that much. Maybe the folks in Finland assume that all mothers of newborns are suffering from diminished responsibility.
My own approach to stare decisis is a bit casual and would probably shock most lawyers. I figure following precedent is a bit like rolling up your car windows when it's about to rain cats and dogs. If you don't do it, you could easily end up with a big mess. On the other hand, there might easily be overriding reasons that would cause you not to do it.
So maybe we should have a big-time overhaul of our 14th Amendment jurisprudence to emphasize "protection" rather than "equal." In some ways this would be more restrictive than what we have now. During the Aiden Stein case a few years ago, it came out that under Ohio law a person diagnosed in a persistant vegetative state could not be removed from "life sustaining treatment" (which, since Cruzan, includes food and water) until a year had passed. I guess we should be thankful for small blessings! But this requirement did not hold under Ohio law in the case of a minor child, and "life sustaining treatment" could be withdrawn sooner in that case. It appears that this may not actually have been a deliberate exclusion of children from the protection of the law but rather some sort of accident or oversight. Nonetheless, when I brought up this case in a conversation while I was under the impression that it was a deliberate exclusion of children from the one-year protective clause, an interlocutor argued that this should pass the minimal scrutiny rational basis test because the state interest in question would be maintaining parental authority. Normally I cheer for maintaining parental authority, but it's not clear to me (to put it mildly) that the authority to dehydrate one's child to death without even waiting a year is such a great thing. (To be clear: Baby Aiden required a ventilator, and if he had been removed from life support he probably would not have lived long enough to be dehydrated to death.) Moreover, and ironically, in the case of Baby Aiden the state had taken medical guardianship of the child from his parents, so it would be a state guardian who would be making the decision anyway, against the parents' wishes. Such a law would, under my proposed 14th Amendment jurisprudence, be prima facie unconstitutional for failing to provide equal protection of the law to minor children against the withdrawal of life sustaining treatment.
On the other hand, in many ways such an interpretation would be less restrictive on state prerogatives. Certainly VMI would have been able to keep "discriminating" against women in its enrollment!
So what do you think? Is this a bad idea? Is it manifestly wrong in terms of the original meaning of the text? The question is, of course, purely theoretical, as no one is asking me how we should radically change 14th Amendment jurisprudence. But in constitutional interpretation, purely theoretical questions are interesting.