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The Eighteenth-Century Debate About Equal Protection and Equal Civil Rights Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1992 Equality and Diversity: The Eighteenth-Century Debate About Equal Protection and Equal Civil Rights Philip A. Hamburger Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, Fourteenth Amendment Commons, Law and Philosophy Commons, Law and Race Commons, and the Legal History Commons Recommended Citation Philip A. Hamburger, Equality and Diversity: The Eighteenth-Century Debate About Equal Protection and Equal Civil Rights, 1992 SUP. CT. REV. 295 (1992). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/482 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. PHILIP A. HAMBURGER EQUALITY AND DIVERSITY: THE EIGHTEENTH-CENTURY DEBATE ABOUT EQUAL PROTECTION AND EQUAL CIVIL RIGHTS Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution.1 Long before the Fourteenth Amendment, how- ever-long before even the 1830s-equal protection of the laws and equal civil rights were hardly notions unknown to Americans, who used these different standards of equality to address problems of religious diversity. In late eighteenth-century America-a na- Philip A. Hamburger is Professor of Law and Legal History, the National Law Center, George Washington University. AtrrHoR's NOTE: The author gratefully acknowledges the generous financial support of the Lynde and Harry Bradley Foundation and the very helpful suggestions of Robert L. Birmingham, Boris I. Bittker, Barbara Black, Thomas E. Buckley, S.J., Stephen J. Hey- man, Peter C. Hoffer, Richard S. Kay, William Letwin, William G. McLoughlin, Bruce H. Mann, and Kent Newmyer. ' For example, Howard J. Graham, The Early Anti-Slavery Background of the Fourteenth Amendnent, in Everyrnan's Constitution, Leonard W. Levy, ed (State Historical Soc of Wisc, 1968) ("Everyinan's Constitution"); Jacobus Ten Broek, Equal Under Law (Collier Bks, 1951, republished 1965) (Ten Broek, "Equal Under Law"). © 1993 by The University of Chicago. All rights reserved. 296 THE SUPREME COURT REVIEW [1992 scent nation in which territories, peoples, and religions were multiplying-Americans employed ideas of equal protection and equal civil rights to discuss their heterogeneity, and the ways in which they did this cannot help but be of interest. By examining how Americans used different standards of equality to address their diversity, we will be able, among other things, to observe the early development of ideas that have become increasingly central to our perceptions of ourselves and our polity and thereby have affected the development of our nation. Although more spacious than two hundred years ago, America is also more crowded with people and their perceptions of their differences, and, therefore, the history of how we addressed our heterogeneity in the eighteenth century may be of greater interest now than at any time before. It is unavoidable that this inquiry concentrate on eighteenth- century debates concerning religious liberty. During the nine- teenth century, Americans engaged in a variety of controver- sies-most dramatically that concerning slavery-in which they discussed versions of the ideas of equality examined here: equal protection and equal civil rights. Nonetheless, slavery will not be the focus of this article, for, in the eighteenth century, it was the diversity of Christian sects rather than racial differences that prompted Americans to contend over equal protection and equal civil rights.2 The familiarity of much of the clergy with the state-of- nature analysis, the alignment of interests among religious sects, and the nature of the controversy about religious freedom permit- ted eighteenth-century Americans to engage in remarkably sophis- ticated, albeit polemical debates about equal protection and equal civil rights. Therefore, to study the early history of these notions of equality, we must turn to the eighteenth-century debates about 3 religious freedom. In recent decades, historians have produced a substantial and important body of literature on equality. Historians of the Four- teenth Amendment, including Howard Jay Graham, Jacobus Ten Broek, and Earl Michael Maltz, have shown that equal protection 2 Of course, religious differences frequently were associated with ethnic and other social differences. ' The Massachusetts controversy about equal rights of suffrage is of great interest to historians of equality, but it did not generate debate between advocates of equal protection and advocates of equal civil rights. EIGHTEENTH-CENTURY EQUALITY 297 4 was discussed in connection with slavery already in the 1830s. They have not, however, traced the idea back to the eighteenth- century disputes about religious equality. In contrast, historians of religious liberty in the eighteenth century have discussed the gen- eral notion of equality, yet they have not focused on the idea of equal protection. For example, Nathan Hatch has traced the "de- mocratization" of religion in America, including the attempts of late eighteenth- and especially early nineteenth-century preachers to encourage religious sentiments among all Americans.' In elic- iting expressions of religious feeling among a wide variety of Americans, these preachers drew upon desires for political and social equality that, although hardly new, had new potency as a result of America's changing demographics. Of particular impor- tance for this article is the work of William G. McLoughlin and Thomas E. Buckley, who have examined how legal developments came to reflect expectations of equality.6 Buckley has shown that the notion of equality was of central importance in the Virginia debates about religious freedom, and McLoughlin has traced in rich detail its crucial role in New England. On the whole, however, just as scholars of equality have not sufficiently explored the eigh- teenth-century debates about religion, so students of religious liberty have not attempted systematically to differentiate the stan- dards of equality for which various religious groups were con- tending. In particular, they have not examined the idea of equal protection or how it differed from the notion of equal civil rights. Thus, the eighteenth-century history of the idea of equal protection unknown to historians of the Fourteenth Amendment and remains 7 unexplored by historians of religion. 4 Howard J. Graham, The Early Anti-Slavery Background of the Fourteenth Amendment, in Everyman's Constitution;Ten Broek, Equal Under Law; Earl M. Maltz, FourteenthAmendment Concepts in the Antebellum Era, 32 AmJ Legal Hist 305 (1985). J. R. Pole writes that "Jackson introduced the phrase 'equal protection.'" J. R. Pole, The Pursuit of Equality in American History 146 (U of Calif, 1979). Obviously, Pole could have pursued equal protection farther than he did. 'Nathan Hatch, The Democratization of American Christianity (1989). 6 William G. McLoughlin, New EnglandDissent, 1630-1833 (Hary U, 1971) (McLoughlin, "New EnglandDissent"); Thomas E. Buckley, S.J., Church and State in Revolutionary Virginia, 1776-1787 (U of Va, 1977) (Buckley, "Church and State in Revolutionary Virginia"). See also Thomas J. Curry, The FirstFreedoms (Oxford U, 1986). 1 For a brief recognition of the connection, see Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication 61 Notre Dame L Rev 311, 326 (1986). Paulsen notes Madison's use of equal protection in his 1785 298 THE SUPREME COURT REVIEW 11992 A joint examination of these two subjects-religion and equal- ity-provides an opportunity for each to be illuminated by the other. For example, in eighteenth-century debates about religious liberty, Americans employed the ideas of equal protection and equal civil rights and, in so doing, repeated and refined formula- tions that remain familiar and that have contributed much to our perceptions of equality and our response to the variegated character of our nation. Conversely, eighteenth-century discussions of equal- ity can reveal much about early views of religious liberty. Indeed, an examination of how eighteenth-century Americans understood different standards of equality can shed light on some of their various state and federal guarantees of religious freedom. It cannot be over-emphasized that modern egalitarian assump- tions must be put aside. Americans debated about equal protection and equal civil rights during the ferment of the Great Awakening and then, more prominently, during the revolutionary turmoil of the 1770s, when, having begun to demand equal rights from Brit- ain, Americans increasingly also sought equal rights from their domestic governments. In the context of these stirrings of
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