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The Theory of the American Founding, Part 3: Why Equal Protection of the Law?
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The Theory of the American Founding, Part Three: Why Equal Protection of the Law?

The cornerstone of the American political system is the principle of human equality enshrined in the Declaration of Independence. The Declaration begins with a simple yet profound articulation of this principle: "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness." All human beings possess equally the natural rights to life, liberty, and the pursuit of happiness.

The Declaration goes on to state the purpose of government: "That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed..." Since all men possess equal rights by nature, the purpose of government is to secure those rights.

The purpose of government - securing rights - points to the inherent limits placed on a just government. That is, if the purpose of government is to protect rights, then government must be limited to those things necessary for the protection of rights. If the government itself becomes too large and powerful, it becomes a threat to the rights and liberties of the people, the very things government is supposed to protect. This underlies Madison's famous statement in Federalist 51:

"But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself."

Madison's point is that human nature is not angelic: human beings are not wholly good. Sometimes they follow the baser elements of their nature and violate the rights of others. Thus government is instituted to protect its citizens against those who would violate their rights. But at the heart of the idea of just government lies a great difficulty: government must be at once strong enough to protect our rights, but not so strong that it threatens our rights. That is, we must first give the government the powers necessary to control the governed, and then ensure that the government controls itself. The solution to this difficulty is limited constitutional government.

We know that the purpose of government is to protect rights; therefore we know that government should be limited in its powers. That is, based on the principles of the American Founding, legitimate government has only the power necessary to affect its end: the protection of our rights. In order to limit the powers of the government, the Founders offered a written constitution which specifies what government ought to do, and what it ought not do. This idea of limiting the powers of the government defines the structure of the American Constitution. For example, Article I, Section 8 of the Constitution enumerates the powers of the legislative branch of government, while the next section, Article I, Section 9 places restrictions on the power of the legislature. Article I, Section 10 then goes on to place restrictions on the powers of the various state governments.

Furthermore, as citizens we can know what the proper duties of the government are by referring to the fundamental law of the land, the Constitution. This idea of living under a written constitution is what is sometimes called "constitutionalism."

In a constitutional regime such as America, how should the government act towards citizens? Even if the government is exercising some power that is granted by the Constitution, should government be able to make arbitrary distinctions between citizens, and treat them differently? Here we must remind ourselves of the purpose of government: to protect the equal natural rights of all citizens.

The American constitutional system is based on the idea that the law, not individual men, reign supreme over both the government and over citizens. Put another way, we want government and society to act according to the rule of law. Society is best governed by the rule of law, rather than the arbitrary will of men, because law represents the reason of men divorced from the passions of men, and it aims at the common good of all citizens, not the good of one man or one group of citizens. The law is superior to the government in the sense that government can only do those things that the law (the Constitution) permits. At the same time, when government exercises power over citizens, it must do so by general laws that apply equally to all citizens similarly situated. If the purpose of government is to protect the rights of citizens, and all citizens possess equal rights by nature, then the government must treat citizens equally by passing general laws.

As Supreme Court Justice Harlan wrote in his dissenting opinion in the case Plessy vs. Ferguson, "In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful."

If government is to protect the equal rights of citizens, it must offer every citizen the equal protection of the law. This kind of rule, and only this kind of rule - the rule of laws that offer equal protection - is compatible with the idea of human equality and equal natural rights.

Discussion questions:
  1. By knowing the purpose of government, what else do we know about government?
  2. What is the difficulty that lies at the heart of the idea of government?
  3. Why do we need to limit the power of government?
  4. How do we limit the power of government?
  5. What does “constitutionalism” mean?
  6. By what rule should government exercise power over citizens?
  7. Why should government offer every citizen the equal protection of the law?
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