Supreme Fraud: Plyler v. Doe

by P.A. Madison on March 25th, 2008

I do not think there is any other single Supreme Court case in which I am asked to comment on more than the case of Plyler v. Doe – especially now with more press attention being devoted to school overcrowding and the costs associated with teaching non-bona fide resident children belonging to citizens of other nations. I have not devoted any lengthy commentary on this case for the simple reason the four dissenting justices (O’Conner, Burger, Rehnquist and White) thoroughly highlighted the majorities injustice – though they didn’t go as far as I am about to.

For example, Chief Justice Burger writing for the minority pointed out:

The Court’s holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of “remedies” for the failures — or simply the laggard pace — of the political processes of our system of government. The Court employs, and, in my view, abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others.

Burger’s view that the majority abused the Fourteenth Amendment is an understatement. The majority rested their ruling on the Fourteenth Amendments Equal Protection Clause (EPC). According to the majority the “Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.” While on its face this sounds to be true, it is important to point out the clause reads “the equal protection of the laws,” not the equal enjoyment of any law.

The man responsible for the language, Rep. John A. Bingham of Ohio, had argued before and after the adoption of the Fourteenth Amendment that no State or Congress had any right to deny anyone the equal protection of the laws. This, he explained, was because the Magna Charta “gave the protection of the laws only to freemen” while the Fifth Amendment used “more comprehensive words, ‘no person’” shall be deprived of life, liberty or property without due process of law.

Thus, Bingham declares in 1870 that no State shall deny the equal protection, “not of its laws, but of the laws.” In other words, Bingham is saying no State can “discriminate in the administration of justice,” because “the protection given by the laws of the States shall be equal in respect to life and liberty and property to all persons.”

Education has never been any thing afforded to children in protecting their life, liberty or property before some court of justice.

To give the opinion of the court some semblance validity, the majority had to first paint the EPC as having broad objectives far beyond the historical meaning of the text. Justice Brennan (of Roe v. Wade fame) wasted no time in doing just that by quoting Sen. Jacob Howard out of context in bolstering the courts claim the EPC was broad:

The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another…

Filtered this way would give the court all they needed in striking down a Texas statute that withheld state funds for educating children who have not been legally admitted to the United States. However, let us read the next sentence from Sen. Howard, which Justice Brennan conveniently omitted:

It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?

Sen. Howard obviously is not talking about social equality but laws for the protection against “arbitrary spoliation” in the administration of justice. Over in the House of Representatives, Chairperson of the Reconstruction Committee, Rep. Thaddeus Stevens, explained the EPC in identical terms when introducing it before the House:

Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man… Now different degrees of punishment are inflicted, not on the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men.

Perhaps more damning for the court is the fact Sen. Howard found no authority under the 14th Amendment to impose upon the State of Mississippi the following conditions on February 14, 1870: “That the constitution of Mississippi shall never be so amended or changed as to deprive any citizens, or class of citizens of the United States, of the school rights and privileges secured by the constitution of said state.” Senator Howard defended the constitutionality of the bill only briefly as “preserving and upholding a republican form of government” under the clause that says the “United States shall guarantee to every State in this Union a Republican Form of Government.”

After the adoption of the Fourteenth Amendment the United States never claimed any power over the education of aliens within the States. Article VII of the 1868 treaty with China provided that “Chinese subjects shall enjoy all the privileges of the public educational institutions under the control of the United States which are enjoyed in the respective countries by the citizens or subjects of the most favored nation.”

This carefully worded language did not grant to Chinese subjects any right to access State schools but only those schools under the control of the United States. An 1894 treaty with Japan touched on the issue of education of aliens, and it did not require compulsory education but instead assured Japanese children would have access to public education if State law provided for the public education of alien children.

In short, the Equal Protection Clause has nothing to do with State laws or policies involving education no more than due process of law ever had. If it had such application, then Bingham would never have approved of Ohio’s Supreme Court ruling that said the EPC in no way interfered with Ohio’s school segregation policies.

John Bingham declared soon after the Fourteenth Amendment was officially adopted in 1868 that under the equal protection of the laws “all citizens shall be forever equal, subject to like penalties for like crimes and no other.” He could not have been more clearer that it was not social equality that was protected by the clause.

Related: Historical Meaning Behind ‘Equal Protection of the Laws’

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11 Responses | Leave a Comment
  1. Ms. Lara says:

    I am doing a Liberty analysis paper on this case. Could anyone please give opinions into which side winning would promote liberty in the sense of personal liberty?

  2. DKB says:

    Ain’t very much ‘justice’ in its generic term/meaning anyway…
    The balances are tilted due to a refusal of our ‘Justices’ to offer any definition or limitation, no matter their job description.
    Equal protection falls under promoting the general welfare…
    Does the rumor that when one is illegal, they have only the ‘right’ to apply to become legal, have validity?
    Might be that we need a lot of replacement players in our game of justice…?

  3. Luke says:

    Interesting points, although I might add that this interpretation of the equal protection clause seems to lend some support to those who argue that Brown v Board is inconsistent with the original meaning of the 14th amendment.

  4. Kent Perry, AZ says:

    Well I just can’t say Thank you enough for putting this argument in a context that cuts right through all the nebulous ambiguity so often given as a basis for many arguments where clearly, it has no business even being introduced in the debate. I know of so many websites where it is thrown in the faces of so many where they think they are so entitled to so many services citing Plyler V Doe

    Thanks again Mr Madison

  5. Prince says:

    In Reply to R Frade: Truth sucks, huh?

  6. R Frade says:

    It is sad that the internet can be used to perpetuate trash like this. It is also incredible that you can mask your prejudice with pseudo-intellectual rhetoric.

  7. Andy G. says:

    “That the constitution of Mississippi shall never be so amended or changed as to deprive any citizens, or class of citizens of the United States, of the school rights and privileges secured by the constitution of said state.”??

    This is the first I’ve heard of this particular bill. I’m lost to understand why Sen. Howard could not find the equal protection clause empowering congress under section 5 to enforce this condition on the state which would had been a far less stretch of textualism than with invoking the guarantee clause. School rights never were considered having anything to do with a republican form government as it is strictly a political question.

    Unless of course, the meaning is exactly as you say and Sen. Howard concurred. Just goes to prove the supreme court is not always supreme in determining the correct meaning of words.

  8. Dr. NO says:

    I always wanted to know what was behind those words “equal protection of the laws.” Just goes to prove you cannot always trust the court to get history right.

  9. Ms. Connie says:

    I found that very interesting about the treaties following the adoption of the amendment. They say the judiciary is the weakest branch!

  10. Buck Norris says:

    What an incredible paradox! A Constitutional amendment that was meant to recognize the US citizenship of black persons, and their descendent’s, who were brought to the US against their personal will is now (mis)used to permit the entry of willing persons that impedes the progress of their present descendants as intended by the 14th. Amendment. Blacks are migrants within their own country from the South to the North. With the extra pressures placed upon their employment, housing and access to legitimate government services such as schools by illegal immigrants, it’s patently obvious that the majority opinion in Plyler v. Doe was, in fact, a perversion of the 14th. Amendment. Shame on the Court.

  11. Randy T. says:

    “In short, the Equal Protection Clause has nothing to do with State laws or policies involving education no more than it had under Article 40 of the Magna Charta.”

    Brilliant point, Mr. Madison.

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