UC Irvine Law Review

This Article examines an important but little-noticed moment in the intellectual history of the Equal Protection Clause: the New York City draft riots of 1863. In mid-July of that year, New York was engulfed by a weeklong riot against the Union military draft, as mobs of predominantly working-class white men beat and murdered Black New Yorkers, looted and burned stores and government buildings, and battled the police in the streets. The scale and intensity of the violence foreshadowed the white supremacist terrorism that subsequently consumed the postwar South. In the wake of the draft riots, though, New York City embarked on a remarkable project of remediation, mobilizing a variety of legal processes as it prosecuted rioters, paid civil damages to riot victims, raised philanthropic funds to provide free legal aid, charged police officers with dereliction of duty, and published extensive volumes of witness testimony to build a record of the events. Those measures anticipated the wider legal efforts at racial redress that were made during Reconstruction, and they also resonate with urgent debates about civil rights protections, racial justice, and police accountability today.

Crucially, moreover, as this remedial process unfolded in New York, a powerful discourse of equality took shape, and it sheds new light on the meaning of the Equal Protection Clause. In particular, it demonstrates that the idea of equal protection in 1863 included affirmative duties for the government to protect its people against harms caused by private parties, which stands in sharp contrast to the limitations on equal protection law set by the modern state action doctrine. Republican leaders in New York City, for example, promised to “protect” Black New Yorkers’ “full and equal right[s]” and “call[ed] upon the proper authorities to take immediate steps to afford them such protection,” while the Board of Police Commissioners charged one of its own officers, Sergeant Jones, with failing to provide “protection for every class of citizens[,] black or white, rich or poor,” during the draft riots. Sergeant Jones’s trial was then covered in the press under the front-page headline “Equal Protection Under the Law,” directly linking the affirmative duty to guarantee “protection for every class of citizens” with the “Equal Protection” vocabulary that would be written into the Fourteenth Amendment just over two years later. Rereading the Fourteenth Amendment in the context of the New York City draft riots, this Article therefore argues that the state action doctrine is an anachronism and that a much broader vision of equality, equal rights, and antidiscrimination law resides within the Equal Protection Clause.