Oliver Wendell Holmes, Jr.’s famous quip that equal protection is ‘‘the usual last resort of constitutional arguments’’ would today be accepted more as a positive than a negative commendation. Given the importance of equality in today’s America, many are surprised to discover that neither the original Constitution nor the Bill of Rights contains a reference to equality. Neither the founders nor the members of the First Congress chose to borrow at all from Thomas Jefferson’s memorable proclamation in the Declaration of Independence ‘‘that all Men are created equal.’’
The Civil War, what some scholars have termed America’s true revolutionary experience, changed that. Significantly, Abraham Lincoln in his Gettysburg Address marked the founding of ‘‘a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal’’ to 1776 and not to the Constitution of 1787. Within a month of Lincoln’s speech, Congress came to grips with the issue of framing an amendment abolishing slavery. One version, put forth by Senator Charles Sumner would have provided that ‘‘all persons are equal before the law, so that no other person can hold another as a slave.’’ Sumner, however, was rebuffed; opponents of his formula wanted no part of language ‘‘copied from the French Revolution,’’ preferring ‘‘the good old Anglo-Saxon language employed by our fathers in the [Northwest O]rdinance of 1787.’’
No such objection was raised to the inclusion in the first section of the proposed Fourteenth Amendment that ‘‘[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.’’ Today, equality is universally embraced as a value of American society, but different people have vastly different ideas of what it means and what the Fourteenth Amendment’s guarantee of equal protection requires.
The language of the Fourteenth Amendment clearly reflected earlier language from the Civil Rights Act of 1866. Indeed, many who voted for the Fourteenth Amendment felt that it was necessary in order to constitutionalize the 1866 legislation that hitherto rested solely on Congress’s power to enforce the Thirteenth Amendment. Among other things, the Civil Rights Act provided that
all persons born in the United States . . . citizens of the United States . . . that] such citizens, of every race and color . . . shall have the . . . equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
Unfortunately, the Thirty-ninth Congress’s debates offer little help as to exactly what equal protection meant. The general consensus among scholars is that in addition to putting the 1866 Act on firmer constitutional ground, it was intended to ensure that, were the Democrats to regain power, they would have to amend the Constitution to undo the protections for the freedmen. This said, the most prominent historian of the Fourteenth Amendment, Charles Fairman, summed up the problem facing later generations seeking to plumb the depths of meaning of the equal protection clause by observing that ‘‘in the main the [authors of the Freedom Amendments] did not discern the obduracy of problems lying on the shady side of victory.’’ Americans of the twenty-first century continue to be divided and uncertain as to what equal protection means.
Unlike the Bill of Rights, which waited until the twentieth century for judicial interpretation, the Fourteenth Amendment and in particular the first section were interpreted a scant five years after ratification, or as Justice Samuel F. Miller wrote in the opinion of the Court in The Slaughterhouse Cases (1873), ‘‘in the light . . . of events, almost too recent tobe calledhistory,butwhichare familiar tousall . . . .’’ Speaking for a five-member majority, Miller dismissed the butchers’ claims that by granting the Crescent City Slaughter-House Company a monopoly the Louisiana legislature had deprived them of the equal protection of the laws.
[N]o one can fail to be impressed with the one pervading purpose found in them all [that is, The Freedom Amendments], lying at the foundation of each, and without which none of them would have even be suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freedman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.
Specifically addressing the meaning of equal protection, Miller concluded simply that it was
[t]he existence of laws . . . which discriminated with gross injustice and hardship against [African Americans] as a class, was the evil to be remedied . . . . It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.
The Court continued in a similar vein in Strauder v. West Virginia (1880), striking down a statute barring African Americans from jury service. In that opinion, though, Justice William Strong allowed that the guarantees of equal protection extended beyond the former slaves, protecting both ‘‘white men’’ and ‘‘naturalized Celtic Irishmen.’’
Subsequent decisions, most notably those in The Civil Rights Cases (1883) and Plessy v. Ferguson (1896), made Miller’s and Strong’s language ring hallow. In the former case, the Court held that prosecutions under the Civil Rights Act of 1875 of private individuals for discriminating against blacks went beyond the powers of Congress. In Plessy, Justice Henry Brown found that state-mandated segregation on railroad cars was reasonable, in contrast to hypothetical ‘‘laws requiring colored people to walk upon one side of the street, and white people upon the other.’’ Brown’s distinction built on Justice Stanley Matthews’ earlier opinion in the case of Yick Wo v. Hopkins (1886). There Matthews had used the equal protection clause to protect the Chinese operators of laundries in San Francisco from the discriminatory application of a facially neutral ordinance designed to reduce dangers from fire. According to Matthews, ‘‘No reason for [its current enforcement] is shown, and the conclusion cannot be resisted, that no reason exists except hostility to the race and nationality to which [Yick Wo] belong[s] . . . .’’
Using this standard, the Court upheld various
measures enacted to impose segregation under the banner of ‘‘separate but equal,’’ actions that would undo all the advances that the former slaves had gained during Reconstruction. For its part, the equal protection clause was used sporadically to allow the Court an additional check on state economic legislation with which it disagreed, although in this area the Due Process Clause played a much more important role. Other than these exceptions, the equal protection clause slipped into the same degree of irrelevance to which the Court in The Slaughterhouse Cases had relegated the Fourteenth Amendment’s ‘‘privileges and immunities’’ clause.
Matters stood pretty much unchanged until the 1930s. Then, the struggle between the Court and the New Deal, culminating in the so-called ‘‘switch in time that saved nine,’’ produced a Court that adopted a very different role than any of its predecessors. Although Congress had rejected President Franklin Roosevelt’s effort to appoint additional judges and thus secure a majority of justices willing to uphold challenged New Deal legislation, the Court in 1937 appeared to give way, first upholding a state minimum wage law and later, the constitutionality of the National Labor Relations Board. Commentators, accordingly, generally refer to Roosevelt as having lost the battle over expanding the size of the Court, but winning the war to save the New Deal.
For the Court, this was a time of adjustment from the ‘‘Old Court’s’’ concern with property to the ‘‘New Court’’ and its protection of civil rights and liberties. In 1938, in an otherwise unremarkable case, Justice Harlan Fiske Stone traced the basic outlines of this new role. Frequently dubbed a ‘‘double standard,’’ the famous footnote four of United States v. Carolene Products (1938) set forth a highly deferential standard for legislation dealing with economic matters. In contrast, a far more rigorous test was established for legislation that dealt with noneconomic individual rights.
[A] narrower scope for operation of the presumption of constitutionality [is appropriate for] legislation [that] appears on its face to be within a specific prohibition of the Constitution, such as the first ten amendments . . ., or which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, [or] review of statutes directed at particular religions . . . or national, . . . or racial minorities . . . [or] prejudice against discrete and insular minorities . . . .
The Court’s changed attitude was not lost on Court watchers and, in particular, on those who sought to fight Jim Crow laws. In 1939, the National Association for the Advancement of Colored People (NAACP) took steps to strengthen its already nineyear- old legal attack on segregation by establishing the Legal Defense Fund with future Supreme Court Justice Thurgood Marshall as its first head. A year earlier, the NAACP had scored a major victory against segregation before the Supreme Court in the case of Missouri ex rel. Gaines v. Canada (1938). Missouri had a policy providing for payment of tuition of African-American law school applicants attending an out-of-state law school. It eventually agreed to start an all-black law school in Missouri. Neither was enough to satisfy Chief Justice Charles Evans Hughes who spoke for a six-to-two Court in finding that Missouri had failed to provide a ‘‘legal education substantially equal to those which the State there offered for persons of the white race.’’
World War II brought other changes to American society that raised further questions about segregation. The war effort required a total mobilization of the population, and one consequence was that jobs formerly monopolized by white men were now open to blacks and to women. This development attracted a growing stream of southern blacks moving to northern cities where they were able to vote and gain some share of political power. The racist ideology preached by Hitler and the discovery of the horrors of theHolocaust raised further discomfiting questions about America’s own policies on race. The gradual breakup of the European colonial empires and the contest for the hearts and minds of these new nations with the Soviet Union gave a new urgency to re-examining the prewar racial status quo.
With the end of the war, the NAACP renewed its attack on educational segregation. In the wake of Gaines, some southern states had expanded educational opportunities for blacks, albeit on a segregated basis. South Carolina’s new governor, former associate justice James Byrnes returned from Washington to warn South Carolinians that Washington, and in particular the Supreme Court, was likely to demand more equality as the price the South must pay for maintaining ‘‘separate but equal.’’
Two victories soon validated the NAACP’s 1930 decision to attack segregation in education. Even before these, however, the Vinson Court signaled a significant change in its 1948 decision in Shelley v. Kraemer.
The White Court had previously struck down an effort to enforce residential segregation in Buchanan v. Warley (1917) on grounds typical of the ‘‘Old Court,’’ that is, the fact that Kentucky’s restriction interfered with an individual’s liberty of contract. Restrictive covenants posed quite a different issue. These were conditions placed in deeds to property limiting the right of the property owner to either to rent or sell the property to persons of certain ethnic or racial backgrounds. They had been upheld in Corrigan v. Buckley (1926) in a unanimous decision by a Court that included Holmes, Louis Brandeis, and Stone. As had been true in The Civil Rights Cases, the Court found no state action and therefore no equal protection violation. In contrast, in Shelley, Chief Justice Fred Vinson for a unanimous Court— three justices not participating—now found judicial enforcement of covenants to be ‘‘state action.’’
The 1950 education decisions were also unanimous. Sweatt v. Painter and McLaurin v. Oklahoma caused the Court to consider whether separate could ever be equal. In Sweatt, Texas, after much litigation, had finally established a law school for blacks. Again Chief Justice Vinson spoke for the Court. He accepted Thurgood Marshall’s argument that there was no way that this newly established law school could ever be the equal of the existing white law school. Vinson noted that even if the facilities were equal, the education could not be. By the state’s excluding
members of the racial groups which number 85 percent of the population . . . and include most of the lawyers . . . with whom petitioner will inevitably be dealing . . . we cannot conclude that the education offered . . . is substantially equal to that which he would receive if admitted to the University of Texas Law School.
In McLaurin, Oklahoma had admitted a veteran African-American teacher into the university’s graduate program in education. Instead of establishing a separate doctoral program at an existing black-only state school, it proceeded to require McLaurin to sit behind a cordon in class that separated him from his fellow classmates and to sit at tables in both the library and cafeteria labeled as reserved for ‘‘colored.’’ Although Vinson’s opinion in McLaurin was brief, it may have presaged more than Sweatt what the Court would write in the 1954 decision of Brown v. Board of Education. By so separating him from his fellow graduate students, Oklahoma had denied McLaurin ‘‘his personal and present rights to equal protection of the laws . . . . [He] must received the same treatment . . . as students of other races.’’ By denying this, Oklahoma adversely affects McLaurin’s education and the education of his future students. ‘‘Their own education will necessarily suffer to the extent that his training is unequal to that of his classmates. State-imposed restrictions which produce such inequalities cannot be sustained.’’
Buoyed by these victories, Marshall and his team at the Legal Defense Fund prepared to make their long-planned frontal attack on public education at the elementary and secondary levels. Their decision to concentrate on graduate and professional education had been a tactical one. They realized that since this involved fewer students, it was likely to produce less of a backlash than an attack on public schools. They also thought that by challenging separate but equal at law schools, they would have a more sympathetic hearing from the justices.
Still they realized that the Court of the 1950s was itself an institution that might be hesitant to wade into this highly explosive area. The Court’s prestige had not fully recovered from the scars suffered in its battle with Roosevelt. The Court was also more conservative. The Truman appointees had tilted the Court away from the very liberal tint it had taken on in the 1940s. This combination had created a Court that largely embraced the judicial role known as selfrestraint, a notion that Holmes had championed and which had been enthusiastically embraced by Justice Felix Frankfurter. According to C. Herman Pritchett, the Vinson Court took ‘‘[t]he strong legislature–weak judiciary formula which Holmes developed for the . . . purpose of controlling judicial review over state economic legislation,’’ and extended it to legislation that touched directly upon guarantees of individual liberties found in the Constitution.
Despite these concerns, the NAACP undertook to mount a series of challenges to public school segregation. Five state cases were combined in what has come to be known as Brown v. Board of Education (1954), arguably the Court’s most important decision of the twentieth century. Each had been carefully selected to force the Court finally to address squarely whether ‘‘separate but equal’’ was still good law. First argued in 1952, the Court took the unusual step of ordering a second set of arguments set for October 1953. Clearly, the justices realized the political implications of a decision setting aside a precedent that not only had survived since 1896 but had been repeatedly invoked by the Supreme Court, a fact that South Carolina’s attorney, John W. Davis, vigorously reminded the Court. Before the second round of argument, Chief Justice Vinson died and President Dwight D. Eisenhower nominated California Governor Earl Warren to succeed him. Although scholars disagree as to how the Court would have voted in 1953, they seem universally to credit Warren with ensuring that the Court would speak with one voice in Brown. The Warren opinion seems to have been as much directed at the general public than to academics or lawyers. One of the chief justice’s biographers noted that more than any thing else, Warren was guided by a desire for fairness, and if anything was not fair it was segregation.
After reviewing the Court’s previous rulings on educational segregation, Warren proceeded to address the particular issues in elementary and secondary education.
To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone . . . . We concluded that in the field of public education the doctrine of ‘‘separate but equal’’ has no place. Separate educational facilities are inherently unequal.
The unanimity that Warren had worked to achieve in Brown was maintained throughout his tenure (1953–1968) despite little support from the political branches of government and dogged opposition by public officials form the old Confederacy. Warren’s successor, Warren Earl Burger, was not so successful in this regard. Although he held the Court together in the first of the busing cases, Swann v. Charlotte- Mecklenburg School District (1971), the unanimity ended two years later in another busing case, Keyes v. School District No. 1, Denver (1973) from which Justice William Rehnquist dissented, and further deteriorated in Milliken v. Bradley (1974) with the issue of de jure versus de facto segregation producing a five-to-four split, a margin that would be repeated frequently in subsequent cases involving race.
The issue of affirmative action, although not provoking the violence that frequently surrounded busing, has proven to be more enduring. In early opinions, the Burger Court adopted the ‘‘disparate impact’’ theory, and held that job qualifications must be closely related to job performance. Affirmative action in education proved more troublesome. By a vote of five to four, the Court found the quota adopted by a California medical school violated the Civil Rights Act of 1964, but a different five-member majority found that the equal protection clause did not preclude a school from considering race as one factor in admissions. Subsequent decisions of the Burger and Rehnquist Courts appeared to undermine the finding of Regents of the University of California v. Bakke (1978). Despite concerns that the transformation of the Court effected by the appointees of Presidents Reagan and Bush would result in a holding that racial preferences could be used only when there was evidence of past discrimination, another five-tofour Court in 2003 upheld the use of race as one factor in making decisions. Justice Sandra Day O’Connor’s opinion in Grutter v. Bollinger (2003) in fact put Justice Lewis Powell’s opinion in Bakke on much firmer precedential ground than it had ever enjoyed previously. (Powell’s Bakke opinion had been only a judgment of the Court; the core of his decision was not fully accepted by any of the eight other justices.)
O’Connor found that ‘‘the Law School’s use of race [was] justified by a compelling state interest,’’ the school’s and society’s interest in having diversity in education and in the legal community. ‘‘Strict scrutiny’’ meant for O’Connor that racial ‘‘classifications are constitutional only if they are narrowly tailored to further compelling state interests . . . .’’
Early opinions, such as The Slaughterhouse Cases and Strauder, had emphasized that the equal protection clause was designed for ‘‘the newly emancipated negroes.’’ Paragraph three of Carolene Products’s footnote four returned to this theme and provided a basis upon which the concept of ‘‘suspect categories’’ developed and the requirement that such classifications be subjected to ‘‘strict scrutiny,’’ serve a ‘‘compelling state interest,’’ and be ‘‘narrowly tailored’’ to the achievement of that interest.
Footnote four’s promise in this regard was first realized in the 1940s. Justice William O. Douglas used ‘‘strict scrutiny’’ to strike down an Oklahoma law that required the sterilization of a three-time offender in Skinner v. Oklahoma (1942). Ironically, however, the emergence of the idea of race as a modern- day ‘‘suspect category’’ surfaced first in what is generally labeled the infamous case of Korematsu v. United States (1944). An executive order signed by President Franklin Roosevelt gave the military power to designate military zones ‘‘from which any and all persons’’ might be excluded. General John DeWitt carried the order out on the West Coast. When queried why Italian and German aliens were not included, he replied ‘‘a Jap is a Jap,’’ and this was ‘‘a war of the white race against the yellow race.’’ Justice Hugo Lafayette Black sustained Korematsu’s conviction for not reporting for evacuation, while at the same time holding that
all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.
None of the early education cases made mention of suspect categories or strict scrutiny, but in finally addressing the sensitive subject of state antimiscegenation statutes (Loving v. Virginia ), the Warren Court invoked strict scrutiny to strike down a statute that punished blacks and whites equally.
The requirement that legislation challenged under the equal protection clause be reasonable or rational, the standard used in Yick Wo and Plessy, was now reserved only for situations that did not involve fundamental rights or suspect categories, the ‘‘New Court’’ applying it, for example, to economic classifications. These received deferential scrutiny; it was sufficient that government was able to establish a legitimate goal for its legislation and to demonstrate that the means employed had a rational relationship to the goal.
In addition to race and ethnicity, the late Warren Court appeared interested in expanding the number of suspect categories adding illegitimacy. The Burger Court seemed to add alienage. Subsequently, however the Burger Court cut back on both.
More significant during the Warren Court was the use of ‘‘strict scrutiny’’ in reviewing equal protection claims that involved rights identified as fundamental, such as the rights to vote in Reynolds v. Sims (1964), and Harper v. Virginia State Board of Elections (1966), and access to courts in Douglas v. California (1963).
The Burger Court signaled in San Antonio Independent School District v. Rodriguez (1973) a reluctance to expand neither fundamental rights nor suspect categories. By a five-to-four vote, it rejected the claim that poverty constituted a ‘‘suspect class,’’ and education, a ‘‘fundamental right.’’
In contrast to its general reluctance and that of the succeeding Rehnquist Court to expand on either concept, the Burger Court began a judicial revolution affecting gender-based classifications. Although the Court in Reed v. Reed (1971) claimed that it was simply determining whether the differential treatment prescribed by the challenged Idaho statute was reasonable, two years later a four-member bloc sought to elevate gender to suspect status in Frontiero v. Richardson (1973). Justice William Brennan, who had argued in Frontiero that gender should be treated as a suspect category, subsequently fashioned what has been referred to as an intermediate test between suspect and nonsuspect classes or rationality with bite. According to Brennan in Craig v. Boren (1976), ‘‘classifications based on gender must serve important governmental objectives and must be substantially related to achievement of those objectives.’’ With the appointments of Justices Sandra Day O’Connor and Ruth Bader Ginsburg and, despite the failure of the equal rights amendment to win ratification, the Court has moved ever closer to placing gender on the same level as race. Justice Ginsburg’s opinion in the 1996 case of United States v. Virginia (1996) called for ‘‘skeptical scrutiny of official action denying rights or opportunities based on sex,’’ while at the same time conceding that ‘‘[t]he heightened review standard our precedent establishes does not make sex a proscribed classification.’’ Unanswered is whether under ‘‘skeptical scrutiny’’ any classification based on gender would survive that would not survive under ‘‘strict scrutiny.’’
Equal protection, despite Holmes’s observation, is surely no longer a forgotten section of the Constitution.
FRANCIS GRAHAM LEE
References and Further Reading
Cases and Statutes Cited