Equal Protection

Author:Jeffrey Lehman, Shirelle Phelps

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The constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness. The Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The concept of equal protection and equality in the United States is as old as the country itself. In 1776, THOMAS JEFFERSON and the American colonists boldly announced the "self-evident" truth of human equality. Yet the meaning of equality was neither obvious nor clearly defined. The "peculiar institution" of SLAVERY was intricately woven into U.S. economic, social, and political fabric. Many Americans owned slaves, and most, including Jefferson himself, believed in the inferiority of the black race. JAMES MADISON and the other Founding Fathers drafted a national constitution that protected the slave trade and recognized the rights of slave owners. Article I, Section 2, of the Constitution counted a slave as only three-fifths of a person for the purposes of representation in Congress.

Slave codes permitted slave masters to buy, sell, and lease blacks like PERSONAL PROPERTY. Slaves owed their masters an unqualified duty of obedience. Slave owners, on the other hand, were free to do as they pleased, short of murdering their slaves. Only community mores, common sense, and individual conscience restrained slave owners. Very few laws protected slaves from abusive or maniacal masters, and those that did were seldom enforced. In 1857, the U.S. Supreme Court placed its stamp of approval on the institution of slavery, holding that slaves were not "citizens" within the meaning of the Constitution, but only "property" lacking any constitutional protection whatsoever (DRED SCOTT V. SANDFORD, 60 U.S., 15 L. Ed. 691 [19 How.] 393).

From the inception of the United States, then, a gulf has separated the Jeffersonian ideal of human equality from the reality of racial inequality under the law. The tension separating the aspirations of the Declaration of Independence from the barbarism of slavery ultimately erupted in the U.S. CIVIL WAR. The victory won by the North in the War between the States ended the institution of slavery in the United States and commenced the struggle for CIVIL RIGHTS that was to continue into the twenty-first century. This struggle began with the ratification of the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments during the Reconstruction period following the Civil War.

The THIRTEENTH AMENDMENT abolished slavery and INVOLUNTARY SERVITUDE, except when imposed as punishment for a crime. The FIFTEENTH AMENDMENT did not expressly grant black citizens the right to vote, but it prohibited state and federal governments from denying this right based on "race, color, or previous condition of servitude." Each amendment gave Congress the power to enforce its provisions with "appropriate legislation."

Although both of these amendments were important, the FOURTEENTH AMENDMENT has had the greatest influence on the development of civil rights in the United States. Section 1 of the Fourteenth Amendment provides that

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The first clause emasculated the Dred Scott decision by bestowing national citizenship upon all blacks born or naturalized in the United States, making them eligible for federal protection of their civil rights. The PRIVILEGES AND IMMUNITIES CLAUSE, once believed a potential source for civil rights, was narrowly interpreted by the Supreme Court in 1873 and has since remained dormant (SLAUGHTER-HOUSE CASES, 83 U.S., 21 L. Ed. 394 [16 Wall.] 36).

The EQUAL PROTECTION CLAUSE was also narrowly interpreted by the Supreme Court in the nineteenth century, but it still became the centerpiece of the CIVIL RIGHTS MOVEMENT after WORLD WAR II (1939?45). It spawned desegregation, INTEGRATION, and AFFIRMATIVE ACTION and it promoted equal treatment and

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concern for the races under state law. It also provided the country with a starting point for a meaningful dialogue regarding the problems of inequality and discrimination. This dialogue has manifested itself in U.S. constitutional, statutory, and COMMON LAW.

Constitutional Law

Inequalities during Reconstruction The ratification of the Fourteenth Amendment occurred during a period in U.S. history known as the Reconstruction. In this era, the South was placed under military occupation by the North, and African Americans realized some short-term benefits. KU KLUX KLAN violence was temporarily curbed. BLACK CODES, passed by southern states after the Civil War to replace slavery with a segregated system based on social caste, were dismantled. Blacks were elected to state and federal office. Some achieved prominent status in legal circles, including one African American who obtained a seat on the South Carolina Supreme Court.

But Reconstruction was not a substitute for civil rights, and the improvements realized by African Americans proved evanescent. By 1880 the North's passion for equality had atrophied, as had its interest in the fate of African Americans. In the vacuum left by federal withdrawal, southern racism flourished and Klan TERRORISM burgeoned. Labor codes were passed relegating blacks to virtual serfdom. These codes made it illegal for anyone to lure blacks away from their job for any reason, including better working conditions and wages. Some codes provided criminal penalties for African Americans who quit their job, even when no debt was owed to their employer.

Advancements made during Reconstruction were further eroded when the Supreme Court invalidated the CIVIL RIGHTS ACT of 1875 (Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 [1883]). This act proclaimed "the equality of all men before the law" and promised to "mete out equal and exact justice" to persons of every "race, color, or persuasion" in public or private accommodations alike. In striking down the law, the Supreme Court said that when

a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be a special favorite of the law.

The Court was not persuaded that this act was the type of "appropriate legislation" contemplated by the Fourteenth Amendment.

The Rise and Fall of Separate but Equal The Supreme Court's laissez-faire attitude toward racial inequality was also reflected in the area of SEGREGATION. As Reconstruction collapsed, southern states gradually passed statutes formally segregating the races in every facet of society. Public schools, restaurants, restrooms, railroads, real property, prisons, and voting facilities were all segregated by race. The Supreme Court placed its imprimatur on these forms of racial apartheid in the landmark decision PLESSY V. FERGUSON, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).

Homer Plessy, who was seven-eighths Caucasian and one-eighth African, was prohibited from traveling on a railway coach for whites, under a Louisiana statute requiring "equal but separate accommodations" for black and white passengers. The Supreme Court, in an 8 to 1 decision, said this statute did not violate the Equal Protection Clause of the Fourteenth Amendment: "The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but ?it could not have been intended to abolish distinctions based upon color, or to enforce ?a commingling of the two races upon terms unsatisfactory to either." The Fourteenth Amendment, the Court concluded, was "powerless to eradicate racial instincts or to abolish distinctions based on physical differences."

Following Plessy, the "separate-but-equal" doctrine remained the lodestar of Fourteenth Amendment JURISPRUDENCE for over half a century. Legally prescribed segregation was upheld by the Court in a litany of public places, including public schools. As Adolf Hitler rose to power in Germany during the 1930s, however, many U.S. citizens began to reconsider their notions of equality. Nazi policies of Aryan superiority, racial purity, ethnic cleansing, and extermination made many U.S. citizens view segregation in a more negative light. The juxtaposition of the Allied powers fighting totalitarianism in World War II and the citizenry practicing RACIAL DISCRIMINATION in the United States seemed hypocritical to many, especially when segregated African American troops were sacrificing their lives on the battlefield.

A series of Supreme Court decisions began to limit the scope of the SEPARATE-BUT-EQUAL

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doctrine. The first hint of the Court's changing perspective came in the footnote to an otherwise forgettable case, United States v. Carolene Products, 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938). In Carolene Products, the Court upheld a federal statute regulating commerce, applying a presumption of constitutionality to legislation in this area. However, in FOOTNOTE 4, the Court cautioned that this presumption may not apply to legislation "directed at national ? or racial minorities ? [where]...

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