State equal protection: its diverse guises and effects.

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State equal protection: its diverse guises and effects.

I. AN INTRODUCTORY CRITIQUE

Notions of equality that have marked the American experience built upon a heritage dating from the Declaration of Independence and tracts of the Revolutionary era. (1) Yet the promise of this legacy, modest though it was, failed to materialize when the wording of the Declaration and similar papers had to be transformed in the creation of a functional instrument of government. Neither the Articles of Confederation nor the Constitution of 1787 dealt at length with equality. The Framers of the Constitution, in particular, were thwarted by sectional interests that required covert recognition of slavery in the basic document. (2) Even more compelling was the attention directed to the establishment of a workable national government and of the federal system that it spawned.

An implicit conflict lurked when egalitarianism was weighed against the Framers' determination to protect individual liberties against undue invasion. The former called for positive intervention on behalf of those open to attack or deprecation while the latter entailed the erection of negative barriers preserving personal rights against the intrusive acts of government. The Bill of Rights, approved soon after the Constitution became effective, reflected the traditional interests of the founding generation in their efforts to guard against an overweening officialdom much like that reviled by the colonists. It was the tripartite Lockean test that prevailed, not a viable defense of equality promoted as a matter of natural right. (3) The institution of slavery precluded any countermovement. An emphasis on property rights, linked to eighteenth century conceptions of liberty, encouraged a philosophy that tended to restrain and to discourage residual societal concerns. (4)

It remained for the Civil War and Reconstruction to set in motion a turn to egalitarianism and to embody it in a series of constitutional amendments. In addition to the abolition of slavery by dint of the Thirteenth Amendment and the extension of voting rights to the newly emancipated slaves in the Fifteenth Amendment, the Fourteenth Amendment emerged as the ostensible centerpiece of equality. For the first time, a guarantee of equal protection became a part of the national charter. A second due process clause, intended to prevent state infractions, was also included. While the latter came to protect burgeoning commercial and industrial growth during the second half of the nineteenth century, a limited intermingling of due process and equal protection safeguards reappeared years later in a newfound defense of human rights. (5)

Equal protection was almost lost amid a welter of constitutional constraints. In the later 1920s, Justice Oliver Wendell Holmes referred disparagingly to the clause as the "last resort of constitutional arguments." (6) Almost a half century earlier, disillusionment resulted when the promise of an enhanced body of civil rights dwindled, and the ideals of the postwar amendments--especially the equal protection clause--were virtually abandoned. A disheartening sense of reality came to the fore when a separate-but-equal formula was substituted by the Supreme Court, in many ways reflecting the public mood of the age. During the last decade of the nineteenth century, the Court's resort to this terse alternate in the case of Plessy v. Ferguson. (7) brought to an end any expectation of an impending revival of civil rights. (8)

Little of a positive nature came to pass until the late 1930s when equal protection began to take on the rudiments of a tenable constitutional standard. It was in the midst of this new era that debates began to occur, first in the judicial forum, over the extent of a reanimated equal protection. The implications for the development of a civil rights jurisprudence, later reinforced by protective legislation, had to be considered, whereby looking toward the reversal of long-time practices of racial segregation that had dishonored the American heritage. (9)

During the period while equal protection languished, Fourteenth Amendment due process flourished as a tool of negative judicial intervention, relieving private enterprise of many of the burdens wrought by the states' police power. Due process progressed from its procedural origins to serve as a substantive impediment to the exercise of state and national regulatory authority. The United States Supreme Court's performance in the much-decried case of Lochner v. New York (10) projected a negativism that defied traditional judicial prerogatives and boundaries...

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