Justice Rehnquist Gets One Wrong

Apparently in 1977 the Court, 5-4, declared unconstitutional an Illinois law preventing illegitimate children from inheriting, on equal protection grounds. In his dissent, then-Justice Rehnquist states that

"The Equal Protection Clause is itself a classic paradox, and makes sense only in the context of a recently fought Civil War. It creates a requirement of equal treatment to be applied to the process of legislation--legislation whose very purpose is to draw lines in such a way that different people are treated differently. The problem presented is one of sorting the legislative distinctions which are acceptable from those which involve invidiously unequal treatment." (emphasis mine)

Note that he's very, very wrong about this. And ironically, I think, he's wrong in a way that conservatives like to accuse liberals of being wrong. There is no Equal Treatment Clause! There is no Equality Clause, either. There is an equal protection clause, a difference which makes the clause both somewhat more circumspect and also, in some ways, stronger. Of course the law will treat people differently. But a person is not to receive inferior protection of the laws. This means, on the one hand, that yeah, there are plenty of instances where you will treat people differently. It's what laws are. There might even be some situations where people in Group A get a genuinely worse deal than people in Group B that are acceptable. But on the other hand, using the word protection instead of the word treatment changes the thing from a negative to an at least partially positive right. It's one of only two positive rights in the Constitution, I think (aside from procedural rights), the other being the guarantee of a republican form of government in each state. And the fact that we are guaranteed equal protection of the laws, that this is something the state owes us, has real consequences. If there's anything in the Constitution that requires public education, this is it. If there's anything in the Constitution that could prohibit the decriminalization of murder, this is it. Those are both the reasonably trivial examples, but it goes further than that, I think. In the case at hand, this might be a case where, on the "treat similarly situated persons similarly" bases, you would have to allow the discrimination (value-neutral) made by this law, but it's still true that denying illegitimate children, who themselves never did anything wrong, the right of inheritance is denying them the equal protection of the laws.

So I think that maybe conservatives should be careful what they wish for when they scold liberals about how it's just equal protection, not equal treatment. And they should also remember it themselves.