Equal Protection Clause

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Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause.

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws".[1] The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal"[2] by empowering the judiciary to enforce that principle against the states.

More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state leaders, and governments, even including some rights that arguably were not protected from abridgement by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate, and the story of the Equal Protection Clause is the gradual explication of its meaning.

One of the main limitations in the Equal Protection Clause is that it limits only the powers of government bodies, and not the private parties on whom it confers equal protection. This limitation has existed since 1883 and has not been overturned. However, since the 1960s, Congress has passed most civil rights legislation under its Commerce Clause power.

Background

The words inscribed above the entrance to the U.S. Supreme Court are: "Equal justice under law".

The Fourteenth Amendment was enacted in 1868, shortly after the Union victory in the American Civil War. After the Thirteenth Amendment, which was proposed by Congress and ratified by the states in 1865, had abolished slavery, many ex-Confederate states adopted Black Codes following the war.

These laws severely restricted the power of blacks to hold property and form legally enforceable contracts. They also created harsher criminal penalties for blacks than for whites.[3]

In response to the Black Codes, Congress enacted the Civil Rights Act of 1866, which provided that all those born in the United States were citizens of the United States (this provision was meant to overturn the Supreme Court's decision in Dred Scott v. Sandford), and required that "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."[4] Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment. The effort was led by the Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens. The most important among these, however, was Bingham, a Congressman from Ohio, who drafted the language of the Equal Protection Clause.

The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the … Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated, to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.[5]

By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing the same restrictions on the federal government.

Reconstruction-era interpretation and the Plessy decision

The Court that decided Plessy

The first truly landmark equal protection decision by the Supreme Court was Strauder v. West Virginia (1880), soon after the end of Reconstruction. A black man, named Jeff Katz, convicted of murder by an all-white jury challenged a West Virginia statute excluding blacks from serving on juries. The Court asserted that the purpose of the Clause was

to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.

Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of [the defendant's] race."

The next important postwar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other places of public amusement." In its opinion, the Court promulgated what has since become known as the "state action doctrine," which limits the guarantees of the equal protection clause only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong," provided, of course, that the state's law saw it as a wrong. Justice John Marshall Harlan dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism."

Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment," and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state.

A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins (1886).[6] He said: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." Thus, the Clause would not be limited to discrimination against African Americans, nor would it be limited to equal enforcement of existing laws.

In its most contentious post-war interpretation of the equal protection clause, Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana Jim Crow law that required the segregation of blacks and whites on railroads and mandated separate railway cars for members of the two races.[7] The Court, speaking through Justice Henry B. Brown, ruled that the equal protection clause had been intended to defend equality in civil rights, not equality in social arrangements. All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people."

Justice Harlan again dissented. "Every one knows," he wrote,

that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons .... [I]n 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.

Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."[8]

Since Brown v. Board of Education (1954), Justice Harlan's dissent in Plessy has been vindicated as a matter of legal doctrine, and the clause has been interpreted as imposing a general restraint on the government's power to discriminate against people based on their membership in certain classes, including those based on race and sex (see below).

It was also in the post-Civil-War era that the Supreme Court first decided that corporations were "persons" within the meaning of the equal protection clause.[9] However, the legal concept of corporate personhood predates the Fourteenth Amendment.[10] In the late nineteenth and early twentieth centuries, the Clause was used to strike down numerous statutes applying to corporations. Since the New Deal, however, such invalidations have been rare.[11]

Between Plessy and Brown

While the Plessy majority's interpretation of the clause stood until Brown, the holding of Brown was prefigured, to some extent, by several earlier cases.

The first of these was Missouri ex rel. Gaines v. Canada (1938). Lloyd Gaines was a black student at Lincoln University of Missouri, one of the historically black colleges in Missouri. He applied for admission to the law school at the all-white University of Missouri, since Lincoln did not have a law school, but was denied admission due solely to his race. The Supreme Court, applying the separate-but-equal principle of Plessy, held that a State offering a legal education to whites but not to blacks violated the Equal Protection Clause.

Smith v. Allwright (1944) and Shelley v. Kraemer (1948), though not dealing with education, indicated the Court's increased willingness to find racial discrimination illegal. Smith declared that the Democratic primary in Texas, in which voting was restricted to whites alone, was unconstitutional, partly on equal protection grounds. Shelley concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could: after all, the Supreme Court reasoned, courts were part of the state.