State equal protection: its diverse guises and effects.

• Author: Friedelbaum, Stanley H.

1. 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. Over the years, Lochner continued to intrude as a symbol of an odious event bitterly condemned in the annals of judicial review. Following the courtpacking episode of the late 1930s, any suggestion of a revival of substantive due process was looked upon as suspect. This disdain continued until the late 1960s and 1970s when the clause was guardedly reintroduced in defense of newly defined liberty and property interests. (11) An earlier exception was prompted by support of a beleaguered occupational and expressive freedom during the McCarthy era. (12)

   In dramatic fashion, the Supreme Court reiterated its persistent refusal to embrace any remnants of negative judicial intervention to impede economic or social programs. A curious, almost apologetic and defensive quality attached to the Court's renunciatory pronouncements whenever challenges befell the implementation of regulatory schemes. The effects of the conflicts of the late 1930s were not forgotten as the Roosevelt Court and its successors repeated, often in forceful language, the disavowal of any scrutiny of legislative motives, much less any outright holdings of unconstitutionality. (13) The doctrine of deference dominated judicial responses with occasional departures predicated on constitutional clauses and wording other than the Fourteenth Amendment.

   What contributed to the Court's return to a carefully confined substantive due process was the need, recognized incrementally, for the protection of personal autonomy, bodily integrity, privacy, and conjugal rights--safeguards noticeably missing from the text of the Constitution. Other causes espoused were often disguised, however inadequately, in the form of such shibboleths as irrebuttable presumptions. (14) Socially acceptable safeguards of the underprivileged were said to be a part of increasingly stringent procedural requirements. Adherence to the doctrine of deference no longer appeared to be unlimited. (15) But periodic references to the dangers of a revived Social Darwinism continued to mark the unsettled course of due process. (16)

   An embattled equal protection was substituted, in part, as a less distasteful replacement for substantive due process. Nevertheless, it too became subject to antipathy when an overt attempt to effect judicial invalidation of economic or social programs seemed likely. The last holding of unconstitutionality in relation to the latter by means of the Equal Protection Clause occurred in a 1957 case. (17) It was overruled two decades later. (18)

   In a change of course, the Court moved to devise a series of multitiered formulas depicting equal protection applications in a variety of circumstances. The first reference to a "suspect" category, the most exacting level of judicial scrutiny, appeared during World War II with respect to the Japanese evacuation dilemma. (19) A cognate standard pertained to fundamental rights and interests and required a similarly rigorous measure of inquiry and inspection. It emerged initially in a habitual criminal sterilization case. (20) An intermediate designation, reluctantly created, was gender-related and called for classifications that "must serve important governmental objectives and must be substantially related to achievement of those objectives." (21)

   The broadest category of review, distinct from the protection of suspect groups and the preservation of fundamental rights, described no more than a rational-basis test and imparted an extensive degree of deference, especially in economic and social regulatory cases. (22) Courts were admonished not to search for legislative motives or even to seek a feasible rationale for the action taken. Negative intervention was disavowed, the presumption of constitutionality held to be so compelling as to be virtually unassailable. (23)

2. CHANGING PERCEPTIONS: A STATE VIEW

   Almost all state constitutions contain an equal protection clause or its equivalent. In most respects, state provisions replicate the wording of the Fourteenth Amendment. Even where linguistic differences exist, the results have been notably similar. At times, the clauses are so "intertwined" as to form a "double helix, each complementing the other." (24) Yet state equal protection at times has displayed an identity of its own and the potential for divergence from the national paradigm.

   The vitality of equal protection and its diverse analogs has been exhibited with exceptional breadth in decisions of the New Jersey Supreme Court. Long an activist tribunal and among the first to have adopted the new judicial federalism, the court has espoused a robust egalitarianism as one of its salient motifs. The promise of updated or unaccustomed rights has manifested itself not only in the interpretation of explicit constitutional and statutory provisions but also by way of direct efforts at judicial policymaking. (25) At the same time, the court has declined to reject unreservedly substantive due process as an instrument in decisionmaking. (26) The lack of a clearly expressed equal protection clause in the state constitution may be responsible for varied responses. But the court's exposition of equality and its attributes has never been wanting.

   There is a propensity to relate such far-reaching ventures as equal educational opportunity to seemingly inane formulas calling for the "maint[enance] and support [of] a thorough and efficient system...