Provision of the Fourteenth Amendment to the U.S. Constitution that prohibits certain forms of discrimination.
Thomas Jefferson securely linked the ideal of equality to the U.S. political tradition when he argued in the Declaration of Independence that “all men are created equal.” However, his tribute to equality did not immediately find a home in the U.S. Constitution. No clause within the Constitution guaranteed equal treatment by the law, and in fact, the accommodation of slavery within the original constitutional text amounted to an obvious breach of the principle of equality. Not until after the Civil War (1861-1865), when the Reconstruction Congress attempted to secure the political and civil rights of the newly freed slaves, would equality enter the constitutional vocabulary. The ratification of the Fourteenth Amendment in 1868 added to the Constitution the principle that Jefferson had championed almost a century earlier. Section 1 of the amendment declared that no state “shall deny to any person within its jurisdiction the equal protection of the laws.”
In two early cases, the Supreme Court used the equal protection clause of the Fourteenth Amendment to unsettle official patterns of racial discrimination. Strauder v. West Virginia
In other cases, though, the Supreme Court minimized the transformative potential of the equal protection clause in ways that would endure well into the twentieth century. First, in the Slaughterhouse Cases
Though an able commentator on the law of the times, Holmes could not see the future. Beginning in the 1940’s, the Court, chastened perhaps by the alarming spectacle of Nazi racism toward Jews,
The Court first ventured that the equal protection clause would demand special scrutiny of discriminations that affected fundamental rights or interests. In Skinner v. Oklahoma
As the Court was striving to identify particular rights or interests worthy of protection from discriminatory treatment, it also began to study whether particular grounds for discriminating among individuals might be subjected to corresponding rigorous review. For example, the equal protection clause clearly had its genesis in suspicion of laws that classified individuals on the basis of their race. In Korematsu v. United States
In the 1960’s and 1970’s the Court presided over cases involving efforts of segregated school districts to frustrate desegregation efforts and of federal district courts to further them. In Green v. County School Board of New Kent County
In the years that followed the Court’s decisions in Korematsu and Brown, the Court ventured to determine whether other ways of classifying individuals should be treated with a constitutional suspicion comparable to that now applied to racial discrimination. Classification schemes treated to this kind of suspicion are referred to as “suspect classifications,”
The Court wrestled at length over the question of whether laws that classified individuals on the basis of their gender should receive the strict scrutiny applied to suspect classifications. Discrimination
The Court turned away a variety of other claims that particular forms of classifying individuals should be treated as suspect or quasi-suspect. For example, except in cases involving access to certain aspects of justice, the Court declined to treat with any special suspicion laws that classify individuals on the basis of wealth. Furthermore, the Court refused to recognize classifications on the basis of age as inherently suspect, leaving the protection of individuals from age discrimination to the political process.
Nevertheless, the Court did not automatically sustain classification schemes when they were neither suspect nor quasi-suspect. For a classification that is neither suspect nor quasi-suspect, the Court applies what it refers to as rational basis scrutiny. In these circumstances, classifications are upheld as long as they are rationally related to a legitimate government interest. Although the application of this standard of review normally upholds a government classification scheme, occasionally it does not. For example, in Cleburne v. Cleburne Living Center
Beginning with the Court’s decision in Korematsu, it was clear that laws intentionally burdening racial minorities would be subjected to strict scrutiny. More than forty years would pass before the Court finally concluded that laws the singled out racial minorities for beneficial treatment would also receive the same rigorous scrutiny. The path to this ultimate conclusion was neither direct nor widely supported. In its first important consideration of affirmative action plans, a majority of the Court concluded in Regents of the University of California v. Bakke
The final years of the twentieth century witnessed a conservative majority on the Court becoming increasingly hostile to affirmative action programs. In closely divided decisions, the Court eventually determined, first in Richmond v. J. A. Croson Co.
An excellent introduction to this subject is Francis Graham Lee’s Equal Protection: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2003). A general treatment of the equal protection clause can be found in Darien A. McWhirter’s Equal Protection: Exploring the Constitution (Phoenix, Ariz.: Oryx Press, 1995). For historical coverage of the idea of equality in U.S. history, see J. R. Pole’s Pursuit of Equality in American History (2d ed., Berkeley: University of California Press, 1993) and Charles Redenius’s The American Ideal of Equality: From Jefferson’s Declaration to the Burger Court (Port Washington, N.Y.: Kennikat Press, 1981). The Fourteenth Amendment: From Political Principle to Judicial Doctrine by William E. Nelson (Cambridge, Mass.: Harvard University Press, 1988) provides a useful analysis of the broader context of the equal protection clause in the Fourteenth Amendment. The Civil Rights Era: Origins and Development of National Policy, 1960-1972, by Hugh Davis Graham (New York: Oxford University Press, 1990), examines a crucial period in the enforcement of the equal protection guarantee through civil rights laws. Particular treatments relating to racial equality include African Americans and the Living Constitution, edited by John Hope Franklin and Genna Rae McNeil (Washington, D.C.: Smithsonian Institution Press, 1995), and Simple Justice: The History of “Brown v. Board of Education” and Black America’s Struggle for Equality, by Richard Kluger (New York: Alfred A. Knopf, 1976). Useful sources for further reading concerning gender discrimination issues are Cathy Young’s Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality (New York: Free Press, 1999), and Robert Max Jackson’s Destined for Equality: The Inevitable Rise of Women’s Status (Cambridge, Mass.: Harvard University Press, 1998). For treatments of the controversy regarding affirmative action, one may consult Affirmative Discrimination: Ethnic Inequality and Public Policy by Nathan Glazer (New York: Basic Books, 1975), A Conflict of Rights: The Supreme Court and Affirmative Action by Melvin I. Urofsky (New York: Scribner’s Sons, 1991), and The Color-Blind Constitution, by Andrew Kull (Cambridge, Mass.: Harvard University Press, 1992).
Civil Rights Acts
Civil Rights movement
Race and discrimination
Separate but equal doctrine