EQUAL PROTECTION
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 equal-
ity 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 mean-
ing 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 murder-
ing their slaves. Only community mores, com-
mon 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 Indepen-
dence 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 rati-
fication of the Thirteenth (1865), Fourteenth
(1868), and Fifteenth (1870) Amendments dur-
ing 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 condi-
tion of servitude.” Each amendment gave Con-
gress 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 protec-
tion 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 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, statu-
tory, 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 tem-
porarily 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 promi-
nent 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 Ameri-
cans. In the vacuum left by federal withdrawal,
southern racism flourished and Klan TERROR-
ISM burgeoned. Labor codes were passed rele-
gating 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 pro-
vided 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” con-
templated 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 col-
lapsed, 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 deci-
sion PLESSY V. FERGUSON, 163 U.S. 537, 16 S. Ct.
1138, 41 L. Ed. 256 (1896).
Homer Plessy, who was seven-eighths Cau-
casian 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 equal-
ity of the two races before the law, but …it
could not have been intended to abolish distinc-
tions based upon color, or to enforce …a com-
mingling of the two races upon terms
unsatisfactory to either.” The Fourteenth
Amendment, the Court concluded, was “power-
less to eradicate racial instincts or to abolish dis-
tinctions 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 superi-
ority, racial purity, ethnic cleansing, and extermi-
nation 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 DIS-
CRIMINATION in the United States seemed hypo-
critical to many, especially when segregated
African American troops were sacrificing their
lives on the battlefield.
A series of Supreme Court decisions began
