State constitutions matter. We at IJ and the Center for Judicial Engagement have long looked to state constitutions as key in the protection of rights. We have even held two events in the last couple years, one in Minnesota and one virtually in Pennsylvania, discussing the importance of state constitutions, and have two more planned next year. This is why my colleagues and I were excited to file an amicus brief in a Minnesota Supreme Court case, Schroeder v. Simon, that argues that the Minnesota Supreme Court should actually read the Minnesota Constitution.
Schroeder v. Simon is a challenge brought by the ACLU to Minnesota’s system for restoring voting rights of felons. Minnesota restores voting rights for felons who have been released from prison and completed their sentences. But the state does not restore voting rights to felons who are released from prison into the community to complete the remainder of their sentence. The ACLU is representing the latter group, arguing that not restoring their voting rights violates equal protection. But here is where the case becomes fascinating.
The ACLU sued under the Minnesota Constitution, meaning their equal protection challenge is proceeding under the Minnesota Constitution and not the Fourteenth Amendment. But the Minnesota Constitution does not contain an equal protection clause—at least not textually. Instead, the Minnesota Supreme Court has interpreted Article I, Section 2, as guaranteeing “equal protection.”
The Invisible Equal Protection Clause
The first sentence of Article I, Section 2, of the Minnesota Constitution says: “No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” The Fourteenth Amendment says: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” See the similarities? No? Well, the Minnesota Supreme Court does. And not only has the Minnesota Supreme Court determined that Article I, Section 2, guarantees equal protection—without so much as an explanation—but it has determined that outside one small exception, it provides exactly the same protection as does the Fourteenth Amendment.
In our amicus brief we argue that the Minnesota Supreme Court should use this opportunity to return to the text of Article I, Section 2. Doing so would make clear that Article I, Section 2, is not only textually distinct from the Fourteenth Amendment, but that there are also important historical differences between the two. First, and most importantly, Article I, Section 2, was adopted over a decade before the Fourteenth Amendment. This alone makes it illogical to interpret Article I, Section 2, in line with the federal jurisprudence under the Fourteenth Amendment. But that is not all. The Civil War and resulting protections for the freedmen were critical catalysts for adopting the Fourteenth Amendment. This motivation was absent from Article I, Section 2, as it was adopted four years before the War began.
This being the case, we urged the Court to, at a minimum, interpret Minnesota’s equal protection guarantee as separate from the guarantee laid out in the Fourteenth Amendment. Up until 2020, the Court generally treated them as separate. In fact, Minnesota had its own three-part heightened scrutiny test that it applied in lieu of the federal rational basis test. But in 2020, in Fletcher Properties v. City of Minneapolis, the Court rejected this three-part test in favor of the federal rational basis test for all but a slim number of cases.
The Two Due Process Clauses
The Court could also go a step further, as we point out in our brief. The Court should interpret Article I, Section 2, as a “law of the land” clause as it originally did, pairing the “law of the land” clause with the due process clause of Article I, Section 7. This is not a big surprise. Law of the land and due process mean the same thing. It was well accepted then and it is still well accepted now. But just because law of the land and due process mean the same thing, that does not mean interpreting Article I, Section 2, as a law of the land clause would be redundant.
As noted above, Article I, Section 2, of the Minnesota Constitution says: “No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Article I, Section 7 states: “No person shall be . . . deprived of life, liberty or property without due process of law.” There are crucial differences between these two provisions. Article I, Section 2, protects “member[s]” and “rights or privileges.” Whereas Article I, Section 7, protects “person[s]” and “life, liberty, or property.” So Article I, Section 2, protects fewer people but more rights and Article I, Section 7, protects more people but fewer rights. Each can be read as protecting different things—with some overlap.
It does bear noting that the fact that the Minnesota Constitution has two “due process” clauses is something of a historical accident. Minnesota had two simultaneous constitutional conventions. There was only supposed to be one, but there was so much political strife between Republican and Democratic delegates that they could not even elect officers, so they quickly split and held separate conventions. Each convention adopted due process protections and when a group met in a “compromise committee” to meld the two documents together, both clauses made it into the final document, along with some other oddities. But neither draft included any “equal protection” guarantees. And just because the inclusion of both clauses may have been a historical accident, that does not mean the Court should abandon a proper textual interpretation of the Minnesota Constitution.
The Minnesota Supreme Court has never adequately explored the roots of the clause nor adequately explained why this clause guarantees equal protection. Our amicus brief urges the Court to look deeper at Article I, Section 2, and be guided by the text.
Adam Shelton is the Immunity and Accoutability Fellow.