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User:Hwalker21/sandbox

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  • History of lobbying in the United State
    • it has relatively low standards... lots of improvement could be made, but it also isn't super notable
  • History of United States prison systems
    • low quality... more notable and relevant. modern scholarship would be awesome here
  • United States Constitutional law
    • lot of work to be done, but kind of a hefty topic. A lot of scholarship here as well

This will be added to an existing article on the equal protection clause.

Rough Draft edit

Background edit

Equality as a concept has been enshrined in America since the Declaration of Independence.[1] This does not mean that it was a part of daily life or legal practices. Before the passing of the reconstruction amendments, which included the Equal Protection Clause, there were various legal challenges for the rights of Black people in America.[2] Blacks were considered inferior, and up until the Thirteenth Amendment, it was legal to own them as slaves. Even freed Blacks had no legal rights. In fact, in one of the most infamous Supreme Court cases of all time, the Court purported that Black’s in America had no constitutional rights which they could appeal to in society or in the courts[2]. Before this decision there was nothing barring free Black Americans from theoretical access to rights under the law, but in the 1857 Scott v Sanford decision the Supreme Court created a precedence in which Black men, whether free or in bondage, had no legal rights within America[3]. Many historians believed it was this judicial decision that set the United States on the path to the Civil War which would lead the the reconstruction amendments in which the Equal Protection Clause can be found[4].  

Ratification edit

With the return to originalist interpretations of the Constitution, many wonder what was intended by the framers of the reconstruction amendments at the time of their ratification. The 13th amendment abolished slavery but to what extent it protected other rights was unclear.[5] After the 13th amendment the South began to institute black codes which were restrictive laws seeking to keep Black Americans in a position of inferiority. The 14th amendment was ratified by nervous Republicans in response to the rise of Black codes.[5] This ratification was irregular in many ways. First there were multiple states that rejected the 14th amendment, but when their new governments were created due to reconstruction, these new governments accepted the amendment.[6] There were also two states, Ohio and New Jersey, that accepted the amendment and then later passed resolutions rescinding that acceptance. The nullification of the two state's acceptance was considered illegitimate and both Ohio and New Jersey were included in those counted as ratifying the amendment.[6]

Many historians have argued that 14th amendment was not originally intended to grant sweeping political and social rights to the citizens but instead to solidify the constitutionality of the 1866 Civil rights Act[7]. While it is widely agreed that this was a key reason for the ratification of the Fourteenth Amendment, many historians adopt a much wider view. It is a popular interpretation that the Fourteenth Amendment was always meant to ensure equal rights for all those in American.[8] This argument was used by Charles Sumner when he used the 14th amendment as the basis for his arguments to expand the protections afforded to Black Americans.[9]

Though the equal protection clause is one of the most cited ideas in legal theory, it received little attention during the ratification of the 14th amendment.[10] Instead the key tenant of the Fourteenth Amendment at the time of its ratification was the Privileges and Immunities Clause[7]. This clause sought to protect the privileges and immunities of all citizens which now included Black men.[11] The scope of this clause was substantially narrowed following the Slaughterhouse Cases in which it was determined that a citizen's privileges and immunities were only ensured at the Federal level and that it was government overreach to impose this standard on the states [8]. Even in this halting decision the Court still acknowledged the context in which the Amendment was passed, stating that knowing the evils and injustice the 14th amendment was meant to combat is key in our legal understanding of its implications and purpose.[12] With the abridgment of the Privileges and Immunities clause, legal arguments aimed at protecting Black American's rights became more complex and that is when the equal protection clause started to gain attention for the arguments it could enhance[7].

 
This is a drawing by E. W. Kemble shows a sleeping congress with a broken 14th Amendment. It makes the case that Congress ignored its constitutional obligations to Black Americans.

Brown v Board of Education edit

In 1954 the contextualization of the equal protection clause would change forever. The Supreme Court itself recognized the gravity of the Brown v Board decision acknowledging that a split decision would be a threat to the role of the Supreme Court and even to the country[13].


Subsequent legal scholars have argued that in the face a originalism, where judges look at the meaning of the framers of the constitution or the amendment and how they would have decided the legal issue in question, decisions following Brown have resorted to a sort of Brown originalism. It has become so influential that judges might not go to decisions or text before Brown[13].

Notes

Arguments started for brown in 1952 and the official decision did not come until 1954

Creates a feeling of inferiority

Brown v Board-- inherently unequal as it connotes the inferiority of the black race

Largely unused until the last bit of the warren court[14]

Warren court expanded the constitutional idea of equality past race[15]

  1. ^ Antieau, Chester James (1952). "Equal Protection outside the Clause". California Law Review. 40 (3): 362–377. doi:10.2307/3477928.
  2. ^ a b "Dred Scott v. Sandford, 60 U.S. 393 (1856)". Justia Law. Retrieved 2018-11-10.
  3. ^ "Dred Scott, 150 Years Ago". The Journal of Blacks in Higher Education (55): 19–19. 2007.
  4. ^ Swisher, Carl Brent (1957). "Dred Scott One Hundred Years After". The Journal of Politics. 19 (2): 167–183. doi:10.2307/2127194.
  5. ^ a b Zuckert, Michael P. (1992). "Completing the Constitution: The Fourteenth Amendment and Constitutional Rights". Publius. 22 (2): 69–91. doi:10.2307/3330348.
  6. ^ a b "Coleman v. Miller, 307 U.S. 433 (1939)". Justia Law. Retrieved 2018-11-30.
  7. ^ a b c Perry, Michael J. (1979). "Modern Equal Protection: A Conceptualization and Appraisal". Columbia Law Review. 79 (6): 1023–1084. doi:10.2307/1121988.
  8. ^ a b Boyd, William M. (1955). "The Second Emancipation". Phylon (1940-1956). 16 (1): 77–86. doi:10.2307/272626.
  9. ^ Sumner, Charles, and Daniel Murray Pamphlet Collection. . Washington: S. & R. O. Polkinhorn, Printers, 1874. Pdf. https://www.loc.gov/item/12005313/.
  10. ^ Frank, John P.; Munro, Robert F. (1950). "The Original Understanding of "Equal Protection of the Laws"". Columbia Law Review. 50 (2): 131–169. doi:10.2307/1118709.
  11. ^ Baltzell, George W. "Constitution of the United States - We the People". constitutionus.com. Retrieved 2018-11-10.
  12. ^ "Slaughterhouse Cases, 83 U.S. 36 (1872)". Justia Law. Retrieved 2018-11-10.
  13. ^ a b Karlan, Pamela S. (2009). "WHAT CAN BROWN® DO FOR YOU?: NEUTRAL PRINCIPLES AND THE STRUGGLE OVER THE EQUAL PROTECTION CLAUSE". Duke Law Journal. 58 (6): 1049–1069.
  14. ^ Wilkinson, J. Harvie (1975). "The Supreme Court, the Equal Protection Clause, and the Three Faces of Constitutional Equality". Virginia Law Review. 61 (5): 945–1018. doi:10.2307/1072429.
  15. ^ Josephs, Mark L. (1992). "Fourteenth Amendment. Peremptory Challenges and the Equal Protection Clause". The Journal of Criminal Law and Criminology (1973-). 82 (4): 1000–1028. doi:10.2307/1143714.

Review By Tom Anderson.

This looks really good and you cover the topic very well. Your heavy use of citations to back up your statements is great. My only caution would be that there are a few parts of the article that read more like a persuasive essay than a encyclopedia entry. Other than that it looks like you are off to a great start. Good luck on your final article.

Peer Review by Colton Shepherd edit

This looks like a fantastic rough draft with a lot of great information. I have only a few suggestions for improvement. In the "background" section you make a lot of bold statements that need citations to gain more credibility. I also think there are parts of the draft that sound more like a persuasive essay than encyclopedia entry. I noticed this especially with the background section. The ratification section has some incomplete sentences--particularly sentence starting with "Explicitly". Overall it looks like a very great article backed by great sources!

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