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The Original Understanding of Equal Protection of the Laws (with Robert F. Munro), 50 Columbia Law Review 131 (1950)


It is old learning that the Fourteenth Amendment has been interpreted so that its most important sections have little resemblance to the original plan of its sponsors. Since the equal protection clause is in a setting which includes the many other provisions of the Amendment, we recount their fate.

1. It soon became popularly believed that the primary purpose of the entire Amendment was to make the Negroes citizens. As Flack's researches have shown, however, the first sentence of the Amendment which has this effect was added, almost as an afterthought, after the Amendment had already left the Joint Committee on Reconstruction and had passed the House.

2. Privileges and immunities to be protected from state interference were intended by the two major sponsors of the section to include at least the first eight Amendments of the Constitution, and perhaps a good deal more. The extreme vagueness of this phrase, however, permitted its quick reduction by interpretation to a virtual nullity. It has been of no consequence since.

3. The due process clause was almost ignored in the course of adoption. This clause has, of course, become the most important in the Amendment, and much of what the sponsors of the Amendment intended to be covered by the privileges and immunities clause has been absorbed by interpretation into due process.

4. As Graham has shown, the term "person" was never explicitly said to include corporations. In view of the very limited meaning given due process, there was little reason why anyone would have wanted to include corporations as persons. If the sponsors of the Amendment had any notion of including corporations within the protection of the section, it was probably as "citizens" under the privileges and immunities clause.

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