(3) prohibited from enacting discriminatory laws that unreasonably burden or benefit the life, liberty, and property of some people more than others the Equal Protection Clause of the Fourteenth Amendment to run against the federal gov- ernment through the Fifth Amendments Due Process Clause. (2) required to provide people with impartial access to the courts (1) required to impartially execute nondiscriminatory state laws that protect life, liberty, and property The Clause also prohibits states from interfering with any protection provided by constitutionally proper federal laws. This Article contends that the Equal Protection Clause guarantees both nondis-criminatory law enforcement and nondiscriminatory laws. One group of scholars-call them protection theorists-contends that the original meaning of “the equal protection of the laws” only guarantees security against physical violence and possibly access to the courts.6 Another group of scholars contends that the “state-action doctrine” is incoherent and that the original meaning of the Fourteenth Amendment does guarantee positive rights to certain kinds of governmental aid, including protective services.
Scholars have long questioned these features of Fourteenth Amendment law.
At the same time, the Court has insisted that the Equal Protection Clause generally prohibits unjustified, intentional discrimination. The Court has articulated a general rule against judicial use of the Fourteenth Amendment’s Due Process Clause to guarantee governmental protection against private violence.2 It has also hindered Congress’s efforts to provide civil remedies for private violence. By its terms, the equal protection clause of the fourteenth amendment constrains only state action: No State shall. The Supreme Court is a unique authority because of its power to. It then contends that constitutional doctrine should be reconstructed to realize the Constitution’s promise of “the equal protection of the laws.” Equal protection must prohibit arbitrary governmental classifications or differentiation. Thus, in effect, equal protection analysis for a claim against the federal government is the same as that. This Article argues that neither of those things is true as a matter of the original meaning and purpose of the Equal Protection Clause. The Fifth Amendment Due Process Clause, however, does for the federal government what the Fourteenth Amendment Equal Protection Clause does for state governments: it prevents unreasonable discrimination based on the use of classifications. The meaning of the clause is bound up with the entire drama of the Civil War. For nearly 150 years, the Supreme Court has held that the Fourteenth Amendment to the United States Constitution does not secure “positive” rights to governmental aid or apply to “private” action. The Equal Protection Clause is one of the most litigated and significant provisions in contemporary constitutional law.
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