Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution.1 Long before the Fourteenth Amendment, however- long before even the 1830s-equal protection of the laws and equal civil rights were hardly notions unknown to Americans, who used these different standards of equality to address problems of religious diversity. In late eighteenth-century America-a nascent nation in which territories, peoples, and religions were multiplying-Americans employed ideas of equal protection and equal civil rights to discuss their heterogeneity, and the ways in which they did this cannot help but be of interest. By examining how Americans used different standards of equality to address their diversity, we will be able, among other things, to observe the early development of ideas that have become increasingly central to our perceptions of ourselves and our polity and thereby have affected the development of our nation. Although more spacious than two hundred years ago, America is also more crowded with people and their perceptions of their differences, and, therefore, the history of how we addressed our heterogeneity in the eighteenth century may be of greater interest now than at any time before.
It is unavoidable that this inquiry concentrate on eighteenth century debates concerning religious liberty. During the nineteenth century, Americans engaged in a variety of controversies- most dramatically that concerning slavery-in which they discussed versions of the ideas of equality examined here: equal protection and equal civil rights. Nonetheless, slavery will not be the focus of this article, for, in the eighteenth century, it was the diversity of Christian sects rather than racial differences that prompted Americans to contend over equal protection and equal civil rights.2 The familiarity of much of the clergy with the state-ofnature analysis, the alignment of interests among religious sects, and the nature of the controversy about religious freedom permitted eighteenth-century Americans to engage in remarkably sophisticated, albeit polemical debates about equal protection and equal civil rights. Therefore, to study the early history of these notions of equality, we must turn to the eighteenth-century debates about religious freedom. 3
Philip A. Hamburger,
Equality and Diversity: The Eighteenth- Century Debate About Equal Protection and Equal Civil Rights,
Sup. Ct. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/482