Madisonian Equal Protection

Abstract

James Madison is considered Father of Constitution, but his progeny disappointed him. It had no effective defense against self-government's mortal disease --the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim deep conception of equal protection at core of his constitutional aspirations. At Convention, Madison passionately advocated a radical structural approach to equal protection under which republic's broadly focused legislature would have monitored local laws and vetoed those that were parochial and unjust. Rejecting this proposal to structure equal protection into interior operation of government, Framers instead adopted exterior admonitions against state ex post facto laws, impairment of contracts, and like. Expanding this strategy, Fourteenth Amendment admonished states against all denials of the equal protection of laws. Exactly as Madison predicted, however, protection of local minorities cannot be entrusted to dim and doubtful words enforced after fact by courts that are inaccessible to minorities and too distant from people at large to have knowledge and confidence to resist powerful local majorities. This is particularly so of late, as courts have placed vast spheres of activity off limits to extended republic and denied it power to enlist state officials in implementing national policy. By rediscovering Madison's neglected thinking on equal protection, and his elaborate design for a constitution that was never enacted, this Article sheds new light on seemingly intractable problems of federalism and equal protection and paves way for a modern revival of Madisonian Equal Protection.