Boston University School of Law

 

The Fiduciary Foundations of Federal Equal Protection

Gary Lawson
Boston University School of Law

Guy I. Seidman
Interdisciplinary Center (IDC), Herzliya

Robert G. Natelson
Independence Institute; Montana Policy Institute

Boston University School of Law Working Paper 13-32 (July 26, 2013)

Abstract

In Bolling v. Sharpe, the Supreme Court invalidated school segregation in the District of Columbia by inferring a broad “federal equal protection” principle from the Due Process Clause of the Fifth Amendment. It is often assumed that this principle is inconsistent with the Constitution’s original meaning and with “originalist” interpretation.

This Article demonstrates, however, that a federal equal protection principle is not only consistent with the Constitution’s original meaning, but inherent in it. The Constitution was crafted as a fiduciary document of the kind that, under contemporaneous law, imposed on agents acting for more than one beneficiary—and on officials serving the general public—a well-established duty to serve all impartially. The Constitution, like other fiduciary instruments, imposes a standard of equal treatment from which lawmakers and officials cannot depart without reasonable cause. Although the Constitution’s original meaning does not precisely define the answers to all “equal protection” cases, and does not necessarily prescribe norms identical to those of existing equal protection jurisprudence, it clearly does prohibit racial discrimination of the kind at issue in Bolling.


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GARY LAWSON Contact Information
Philip S. Beck Professor
Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

Email: glawson@bu.edu

Phone: (617) 353-3812
Fax: (617) 353-3077

Guy I. Seidman Contact Information
Email: gseidman@idc.ac.il
Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law
P.O. Box 167
Herzliya, 46150
Israel
Phone: 972-9-952-7348

Robert G. Natelson Contact Information
Email: rgnatelson@gmail.com
The Independence Institute
727 E. 16th Avenue
Denver, Colorado 80203
Phone: (303) 279-6536
HOME PAGE: http://constitution.i2i.org
Montana Policy Institute
67 W Kagy Blvd. Ste. B
Bozeman, Montana 59715





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