Equal Protection of the Laws

Author:Kanneth L. Karst

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The ancient political ideal of equality did not find explicit recognition in the text of the Constitution until the FOURTEENTH AMENDMENT was ratified in 1868. Yet equality was an American ideal from the earliest colonial times. There was irony in the expression of the ideal in the DECLARATION OF INDEPENDENCE; the newly independent states generally limited voting to white male property owners, and THOMAS JEFFERSON, the Declaration's author, was the troubled owner of slaves. Even so, one feature of white American society that set it apart from Europe was an egalitarian climate for social relations. The Constitution's ban on TITLES OF NOBILITY symbolized the nation's determination to leave behind the old world's privileges of monarchy and aristocracy.

Jefferson, who believed in an aristocracy of "virtue and talents," understood that equality of opportunity was consistent with wide disparities among individuals' wealth and power. The equality he envisioned was, above all, equality before the law. The principle of universal laws, equally applicable to all citizens, itself provided a foundation for a market economy whose competitive struggles would lead to further inequalities. An equality that was formal, or legal, thus would undermine the "equality of condition" that attracted some of Jefferson's contemporaries. Yet formal equality was something that mattered greatly in the nation's first decades, and it matters greatly today. When Europeans remark, as they still do, on America's relatively high degree of equality, they are referring not to equality of wealth or political power but to equality of social status. With pardonable literary exaggeration, Simone de Beauvoir said it this way: "the rich American has no grandeur; the poor man no servility; human relations in daily life are on a footing of equality.?"

The Fourteenth Amendment's wording emphasizes legal equality. A state is forbidden to "deny to any person within its jurisdiction the equal protection of the laws." On its face this language seems to demand no more than even-handed enforcement of laws as they are written. Such a reading, however, would drain all life from the guarantee of equal protection. On this view even a law barring blue-eyed persons from state employment would pass constitutional muster if the state applied it equally, without discrimination, to all applicants, refusing jobs only to those who were blue-eyed. No one has ever seriously argued for so restricted a scope for the equal protection clause. The Supreme Court casually dismissed the idea with a passing comment in YICK WO V. HOPKINS (1886): "the equal protection of the laws is a pledge of the protection of equal laws."

At the other extreme of silliness, the Yick Wo statement might be taken literally, interpreting the equal protection clause to forbid the enforcement of any law that imposed any inequality. As Joseph Tussman and JACOBUS TEN BROEK showed nearly forty years ago, so sweeping a reading would convert the clause into a constitutional prohibition on legislation itself. All laws draw lines of classification, applying their rules only to some people (or some transactions or phenomena) and not to others. Furthermore, the very existence of law?that is, of governmental regulation of human behavior?implies inequality, for some

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individuals must evaluate the behavior of others and enforce the state's norms by imposing sanctions on the recalcitrant. In Ralf Dahrendorf's biting formulation, "all men are equal before the law but they are no longer equal after it." Given the diverse characteristics of humans, the achievement of equality as to one aspect of life necessarily implies inequalities as to other aspects. And if it were possible to construct a society characterized by total, uncompromising equality, no one would want to live in that society.

Then what kinds of inequality are prohibited by the equal protection clause? The abstraction, equality, cannot resolve cases; the question always remains, equality as to what? To give meaning to the equal protection clause requires identification of the substantive values that are its central concern. The inquiry begins in the history leading to the adoption of the Fourteenth Amendment, but it does not end there. To understand the substantive content of the equal protection clause, we must consider not only what it meant to its framers, but also what it has come to mean to succeeding generations of judges and other citizens.

Just what role the framers had in mind for the equal protection clause remains unclear; the amendment's sketchy "legislative history" has been given widely divergent interpretations. All the interpreters agree, however, that the framers' immediate objective was to provide an unshakable constitutional foundation for the CIVIL RIGHTS ACT OF 1866. That act had been passed over the veto of President ANDREW JOHNSON, who had asserted that it exceeded the powers of Congress.

The 1866 act had declared the CITIZENSHIP of all persons born in the United States and subject to its JURISDICTION. This declaration, later echoed in the text of the Fourteenth Amendment, had been designed to "overrule" the assertion by Chief Justice ROGER B. TANEY in his opinion for the Supreme Court in DRED SCOTT V. SANDFORD (1857) that black persons were incapable of being citizens. Taney had said that blacks?not just slaves but any blacks?were incapable of citizenship, because blacks had not been members of "the People of the United States" identified in the Constitution's PREAMBLE as the body who adopted that document. Blacks has been excluded from membership in the national community, according to Taney, because they were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority.?" Discriminatory state legislation in force when the Constitution was adopted, Taney said, negated the conclusion that the states "regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; ? and upon whom they had impressed such deep and enduring marks of inferiority and degradation.?"

This dubious reading of history is beside the point; Dred Scott 's relevance to our inquiry is that Taney's assumptions about racial inferiority and restricted citizenship were just what the drafters of the 1866 act sought to destroy. There was to be no "dominant race" and no "subordinate and inferior class of beings," but only citizens. Indeed the act's conferral of various CIVIL RIGHTS was aimed at abolishing a new system of serfdom designed to replace SLAVERY in the southern states. That system rested on the BLACK CODES, laws methodically imposing legal disabilities on blacks for the purpose of maintaining them in a state of dependency and inferiority.

The 1866 act, after its declaration of citizenship, provided that "such citizens, of every race and color [including former slaves], shall have the same right [to contract and sue in court and deal with property, etc.] as is enjoyed by white citizens.?" The "civil rights" thus guaranteed were seen as the equal rights of citizens. When President Johnson vetoed the bill, he similarly linked the ideas of citizenship and equality, and argued that the THIRTEENTH AMENDMENT was an insufficient basis for congressional power. Congress overrode Johnson's veto, but from the time of the veto forward, a major purpose of the promoters of the Fourteenth Amendment, then under consideration in Congress, was to secure the constitutional foundations of the 1866 act.

The amendment, like the act, begins with a declaration of citizenship. In the same first section, the amendment goes on to forbid a state to "abridge the PRIVILEGES OR IMMUNITIES of citizens of the United States," to "deprive any person of life, liberty, or property, without DUE PROCESS OF LAW, " or to deny a person "the equal protection of the laws." No serious effort was made during the debates on the amendment to identify separate functions for the three clauses that followed the declaration of citizenship. The section as a whole was taken to guarantee the equal enjoyment of the rights of citizens.

Beyond those specific goals, nothing in the consensus of the Fourteenth Amendment's framers would have caused anyone to anticipate what the Supreme Court made of the amendment in the latter half of the twentieth century. Yet the Fourteenth Amendment was not written in the language of specific rights, such as the right to contract or buy or sell property, but was deliberately cast in the most general terms. The broad language of the amendment strongly suggests that its framers were proposing to write into the Constitution not a "laundry list" of specific civil rights but a principle of equal citizenship.

To be a citizen is to enjoy the dignity of membership in the society, to be respected as a person who "belongs."

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The principle of equal citizenship presumptively forbids the organized society to treat an individual either as a member of an inferior or dependent caste or as a nonparticipant. As Taney recognized in his Dred Scott opinion, the stigma of caste is inconsistent with equal citizenship, which...

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