Minnesota Scare Quotes

Anthony Sanders · February 17, 2023

An update this week at the Center for Judicial Engagement. A while ago (September 2021), my colleagues Adam Shelton (now at the Goldwater Institute), Anya Bidwell, and I filed an amicus brief in a case at the Minnesota Supreme Court. The underlying matter was a challenge to Minnesota’s treatment of felon voting rights. But our brief was on “meta issue” beneath the lawsuit, and many other lawsuits: How to interpret the Minnesota Constitution’s “equal protection clause.” At the time Adam explained the issues in this post, and feel free to go there for a primer on the issues.

Well, after much waiting the court ruled this week. It rejected the challenge to the voting laws and, unfortunately, did not address our brief. We remain hopeful, however, that the court will sort out the issues we raised in the future.

You may notice that in the last paragraph I put the clause guaranteeing equal protection in square quotes and failed to capitalize it. That’s not a shot at the principle of equal protection. It’s a nod to the fact that the phrase “equal protection” does not appear in the Minnesota Constitution, and, therefore, there isn’t really a clause you can bestow the name and any capitalization on.

There are a lot of clauses in that constitution that protect people from the government in all kinds of ways that the state courts largely ignore. (Its Baby Ninth Amendment being one.) Yet for some reason (reasons we discuss in the amicus brief) the courts have ignored those and enforced the one that doesn’t really exist. And not only that, but it interprets this “equal protection clause” almost exactly like the U.S. Supreme Court interprets the Fourteenth Amendment’s Equal Protection Clause. (See how I capitalized the first letters and didn’t use scare quotes? Yeah, because it exists.).

Perhaps as an oblique tip of the hat to us, though, the court did say in a footnote this week (quoting a recent case) that “[t]he Minnesota equal protection guarantee is found in the Rights and Privileges Clause in Article 1, Section 2 of the Minnesota Constitution. We have also applied the principle under the Uniformity Clause found in Article 10, Section 1, and the Special Legislation clauses now found in Article 12 of the Minnesota Constitution.” The court could be saying here that whichever clause it uses, the principle underlying all of these is equal treatment of people, so it doesn’t matter so much which it uses. That could be true, but, as we explained in the brief, they each have their own text and their own emphases. That’s kind of close to penumbras and emanations territory.

Further, as we also explain in the brief, whatever they say and they mean, these provisions of the Minnesota Constitution are not the Equal Protection Clause of the Fourteenth Amendment and do not need to be interpreted precisely as the people at 1 First Street NE, Washington, D.C. (i.e., the U.S. Supreme Court) at this point in history happen to be interpreting it.

One day these truths hopefully will come to pass at a court I care much about and have practiced before several times. In the meantime, feel free to read our brief.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.