Patrick McKinley Brennan (Villanova University School of Law) has posted Getting Equality Right Under the Constitution: The Declaration of Independence, Justice Thomas, and Affirmative Action on SSRN. Here is the abstract:
Is our constitutional order “dedicated to the proposition that all men are created equal”—as Lincoln declared at Gettysburg—or is our constitutional order’s commitment to equality limited to “the equal protection of the laws?” This Article answers these questions by arguing that our constitutional order is committed to two interrelated propositions. The first is that we are in fact one another’s equals, the idea often known as basic human equality. The second is that because we are equals, we have good reason to treat one another as equals and must do so in law.
The Article develops its account of basic human equality in respectful disagreement with Justice Thomas’s account of precisely how “equal protection” in the Fourteenth Amendment is to be interpreted to give effect to “created equal” in the Declaration of Independence. In a speech at the University of Texas at Austin (April 15, 2026) and concurring in Students for Fair Admissions v. Harvard College (2023), Justice Thomas has interpreted “created equal” in the terms of Enlightenment philosophy, which typically postulates some empirical capacity in respect of which humans are said to be equal. What investigation shows, however, is that there are no ‘occurrent’ properties or ‘dispositional’ properties in respect of which people are equal. The Enlightenment approach to human equality adopted by Justice Thomas must be abandoned because the equality it postulates is literally unbelievable.
Basic human equality was never meant to state a scientific proposition based on observed empirical phenomena—it was always meant to state a higher truth, and it was to this higher truth that the Declaration, rightly interpreted, gave lasting expression. Although the Declaration itself is contradictory and incoherent, when interpreted in light of our nation’s unwritten constitution from which it emerged, the Declaration testifies to the unwritten constitution with the reliance on the work of Orestes Brownson (1803–76), and it shows that it is only in light of that unwritten constitution, by which the nation was formed, that the Declaration and in turn the Constitution can be rightly interpreted. The unwritten constitution was the carrier of an understanding of basic human equality stretching back almost two millennia, the understanding by which Christianity remade the very basis of human identity. Contradicting ancient thought that sorted human beings by kind and quality, Christianity taught the unity of humanity; it taught the equality and importance all people in all their diversity. True equality celebrates human diversity. The Article concludes by showing the significance of basic human equality and the requirement of treatment as equals to the contemporary question of the constitutionality of affirmative action. It contends that equals must treat equals as potential friends and contributors to common goods, not on the basis of race or caste.
This article focuses on Justice Thomas’s interpretation of the Equal Protection Clause, but neither the article nor Justice Thomas engages the actual original meaning of “equal protection of the laws.” On a textual originalist reading, the clause requires equal “protection of the laws”—a substantive duty owed by the state to provide protective governance to all persons within its jurisdiction—not a freestanding anti-classification principle. Christopher Green has developed this reading in detail with extensive historical evidence; see, e.g., his book Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (Routledge 2015) and his series of articles on the original sense of the Equal Protection Clause.
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