Equal Protection of the Law
Nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.
— Fourteenth Amendment to the U.S. Constitution
Equal Protection of the Law
In the last half-century the constitutional command requiring equal protection of the laws for all people has been critical in the great social movements that have secured equal legal rights for people of color, women, and other groups, in the United States. In concept it is one of the noblest statements in the American Constitution, and in practice one of the more powerful. Without its authority it is unlikely that the United States would have achieved as much social progress as it has in the past 50 years, and many Americans might still be subjected to an institutionalized prejudice that made them second-class citizens, unable to vote or enjoy all rights. Yet although the Fourteenth Amendment became part of the Constitution in 1868, almost 90 years passed before this broad interpretation of the meaning of "equal protection" flowered.
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When Thomas Jefferson wrote in the Declaration of Independence that "all men are created equal," he did not mean social or economic egalitarianism. Rather he and others of the Founding generation believed that society by its nature could never be socially or economically homogeneous because men differ in their abilities and virtues. They did not want to level society, but rather give to each individual the opportunity to make the most of his abilities. In order for this opportunity to exist, all men (and at the time they were only concerned with men) had to stand before the law on an equal footing. There could not be one law for the rich and another for the poor, although the Founders ignored the fact that there was clearly one law for white people and another for slaves. A generation later, when Andrew Jackson's Democrats talked about equality, they meant the same thing — equality of opportunity based on equal treatment by the law.
Interestingly, no mention of equal opportunity can be found in either the original body of the Constitution or the Bill of Rights, nor was it deemed necessary until after the Civil War. When it became apparent that the defeated Confederate states had no intention of treating the newly freed slaves fairly, Congress responded by drafting and passing the Fourteenth Amendment to the Constitution, which forbade all states from denying any citizens not only due process of law but equal protection of those laws.
Justice Stanley Matthews, in Yick Wo v. Hopkins (1886)
The guaranty of equal protection of the laws is a pledge of the protection of equal laws.
Yet, from the very beginning the meaning of "equal protection" has at times been confusing, perhaps because the framers of the Fourteenth Amendment left us no explanation of exactly what they meant. On the other hand, the phrase could be read to mean that any law, no matter what common sense suggests, will be applied rigidly to all people. Such an extreme notion that laws cannot in any way, shape or manner discriminate among individuals or groups, can become silly. Passing a vision test as a requirement for securing a driver's license clearly discriminates against people who are blind or have sight impediments, yet this is an appropriate form of distinction.
Justice Anthony Kennedy, in Romer v. Evans (1996)
The Fourteenth Amendment's premise that no person shall be denied the equal protection of the law must coexist with the practical necessity that most legislation classifies [people] for one purpose or another, with resulting disadvantages to various groups or persons. . . . [The Court] has attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class [vulnerable group of citizens], we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.
All laws rely on some form of classification, and in many instances the laws only apply to certain people and not to others, and people may be treated differently under terms of the same law. A pension plan for government workers, for example, could certainly differentiate the amount of the pension depending upon rank, years of service, and salary. Both criminal and civil law impose punishments that are clearly differentiated depending upon a number of circumstances. Two women, for example, who are both convicted of the same crime, say murder, could receive vastly different sentences depending upon the circumstances surrounding each case. Just as we would not want the law blatantly to discriminate against people on the basis of such characteristics as age, height, gender, race, or religion, at the same time, we would not want a law that forced all people, regardless of conditions, to be treated exactly alike.
The origins of the Fourteenth Amendment, as a blueprint for the reconstruction of the Confederate states after the Civil War, informed its interpretation in the courts for many years. Despite its plain language that does not in fact refer to race, everyone understood that the Congress that proposed the amendment meant to protect the former slaves from discrimination, and nothing else. Justice Harlan's famous comment that the Constitution was color-blind captured perfectly what had been intended.
Justice John Marshall Harlan, dissenting in Plessy v. Ferguson (1896)
In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.
Justice Harlan's words expressed the ideal, if not always the reality of life for the former slaves and their children. The victorious northern Union, after wiping out slavery and writing noble sentiments into the Constitution, entered a period of economic expansion and industrial growth, and left the intractable problem of race to the South to resolve as it pleased. The result was more than six decades of the institutionalized discrimination against African-Americans known as "Jim Crow." The phrase "Jim Crow" was drawn from a stock character in "minstrel" (vaudeville) shows of the time, in which a white singer and actor would put on black makeup to look like a black man. Eventually, the phrase became widespread throughout the South to denote the segregation of the races.
Eventually segregation — legal separation of whites and blacks under state and local statute — would fall before the Equal Protection Clause, but in the meantime the clause practically disappeared from the constitutional lexicon. The courts, except in certain extreme cases of discrimination, refused to apply it broadly to race relations; and believing that limited purpose to be the sole justification for the Amendment as a whole, refused to utilize it in other instances either. By 1927, Justice Oliver Wendell Holmes could characterize the Equal Protection Clause as the "usual last resort of constitutional arguments," one that had little effect on the legal system as a whole.
All that began to change during World War II, and in one of those ironic aspects of history, new life crept back into the clause not in a case involving overt discrimination against people of color, but in one where chicken thieves were punished far more severely — by sterilization — than were criminals convicted of more genteel forms of thievery such as embezzling funds. Justice William O. Douglas asked the basic question: Was it fair that a strict law applied to all felons with the exception of wealthy embezzlers? The answer was clearly no. This gross disparity in penalties based on social class, he argued, violated the entire premise of equal protection. Douglas then went on to suggest that any law which impinged upon fundamental rights in a way to violate the Equal Protection Clause should be given strict judicial scrutiny by the courts. With this analysis in place, the stage was set for the great civil rights revolution in the decades immediately following the war.
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The Great Depression in America had created a new sense of what government should and should not do. The old notion, that the federal government should not interfere much in the economy, had been erased by the need of the government to act in the 1930s to mitigate the effects of a broken economy, and then in the 1940s to protect the country during the war. At the same time, a new generation of lawyers and civil rights activists began pondering what role the government — and especially the courts — might play in ending segregation. They took heart not only from some cases in which the Court struck down the exclusion of blacks from primary elections, but also from statements such as "All legal restrictions which curtail the civil rights of a single racial group are immediately suspect," a formulation used in more than one case.
When President Dwight Eisenhower named Earl Warren as chief justice of the United States in 1953, the stage was set for what has been termed the "egalitarian revolution." Warren and other members of the Court had no more interest than Jefferson and the Founders in eradicating differences that resulted from talent and hard work. They had no constitutional patience, however, for artificial barriers created by inequalities in the law or unequal treatment of certain groups.
The greatest statement of this principle came in what is without doubt the most important case the Supreme Court handed down in the 20th century, Brown v. Board of Education (1954). For more than a decade, the Court had slowly been chipping away at the edges of Jim Crow — which had resulted in many areas in the legal segregation of blacks from whites — recognizing that it had made a mistake in approving it at the end of the 19th cen