Equality under the Constitution

The United States was born with a Declaration of Independence that proclaimed, as a self-evident truth, that, “all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men.” According to the founders of the United States of America, all people are equal, by virtue of their humanity, in possession of certain rights (such as rights to liberty) that it is the responsibility of government to protect.
The founders were not claiming that all individuals are equal in their personal attributes, such as physical strength, intelligence, or artistic talent. They were not saying that a government is established to enforce equality or uniformity in the way people think, act, or live. Rather, the founders were committed to establishing a government that would guarantee equally to all individuals the rule of law and security for liberty under the law. The word equality, however, did not appear in the Constitution of 1787 and the Bill of Rights of 1791. Further, the ideal of equal rights for all individuals under a government of laws was contradicted by the existence of slavery and the denial of rights to some people because of race or gender. 

Although the Constitution and Bill of Rights, as originally written, did not outlaw slavery and discrimination based on race or gender, one of the great early opponents of slavery and racial discrimination, Frederick Douglass, argued in a widely praised Fourth of July speech (1852) that “interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.” According to Douglass—and many other opponents of slavery, racial discrimination, and gender discrimination—the Constitution of 1787 was neutral with regard to race and sex, thereby leaving the way open to equal protection under the law for women and racial minorities. 

The American ideal of equal rights under law, however, was not explicitly included in the Constitution until after the Civil War, with passage of the three Reconstruction-era amendments. The 13th Amendment (1865) banned slavery. The 14th Amendment (1868) guaranteed equal rights of citizenship to all Americans, with the special intention of protecting the rights of former slaves. The 15th Amendment (1870) provided that voting rights of citizens “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” 

The 14th Amendment includes the word equality in Section 1, which prohibits a state government from denying “to any person within its jurisdiction the equal protection of the laws.” This equal protection clause protects individuals from arbitrary discrimination by government officials. 

Federal courts have read the equal protection concept into their interpretation of the due process clause of the 5th Amendment, thereby applying the equal protection limitations to the federal government. Neither federal nor state governments may classify people in ways that violate their liberties or rights under the U.S. Constitution. 

The equal protection clause does not require identical treatment in all circumstances. Discrimination is sometimes permitted. For example, laws denying people under 18 years old the right to vote or the right to marry without parental permission are considered reasonable classifications that do not violate the individual's constitutional rights and liberties because a relationship seems to exist between chronological age and the ability to perform in certain ways. However, a law prohibiting redheads from voting would be unreasonable and unconstitutional because no relationship exists between red hair and the ability to vote.

Racial equality and affirmative action

Despite the promise of the 14th Amendment, most black Americans did not enjoy equal protection of the laws until the second half of the 20th century. Indeed, the Supreme Court decision in Plessy v. Ferguson (1896) exemplified the denial of equality to black Americans in its sanction of “separate but equal” treatment of people based on race. Both before and after Plessy, racial segregation was a firmly established fact of American life, with the separate facilities for blacks hardly ever equal to those provided for white Americans. 

If Plessy was a symbol of the unequal and unjust social conditions of racial segregation, it also contained a seed of social change toward legal equality. In the dissenting opinion, Justice John Marshall Harlan wrote, “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights all citizens are equal before the law…. It is therefore to be regretted that this high tribunal…has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely on the basis of race.” Justice Harlan's argument for a color-blind Constitution became the rallying cry and goal of the National Association for the Advancement of Colored People (NAACP) and other participants in a civil rights movement committed to equal justice under the law.

The NAACP and its allies achieved several legal victories from the 1930s to the 1950s that advanced the cause of equal protection for the constitutional rights of black Americans. For example, Smith v. Allwright (1944) struck down barriers to participation by blacks in Democratic party primary elections. Missouri ex rel. Gaines v. Canada (1938) and Sweatt v. Painter (1950) provided access for black students to public law schools previously restricted to white students. The turning point, however, came in Brown v. Board of Education (1954), which overturned Plessy and outlawed state-sanctioned racial segregation in public schools. Several Court decisions after Brown, plus the federal Civil Rights Act of 1964, struck down racial segregation laws affecting all facets of American life and advanced the cause of equal security for the constitutional rights of all individuals, regardless of color or race. A key Court decision after Brown was Cooper v. Aaron (1958), which reaffirmed the court's decision in Brown against racial segregation in public schools. And Heart of Atlanta Motel v. United States (1964) buttressed the Civil Rights Act of 1964 in its prohibition of racial discrimination in privately owned accommodations open to the public, such as hotels and restaurants.

In 1967, in Loving v. Virginia, the Court struck down a state law prohibiting interracial marriages and held that all racial classifications are “inherently suspect classifications.” Thus, any legal classification based on race would be subject to “strict scrutiny” by the Court. This means that the suspect classification would be judged unconstitutional unless the government could justify it with a compelling public interest, which is very difficult to do.

Since the 1970s the NAACP and other civil rights organizations have argued for both government-sponsored and private, voluntary affirmative action programs. Such programs are designed to give preferential treatment to racial minorities in order to provide greater access to jobs, competitive college and university programs, promotions to high-level professional and management positions, and government contracts. Advocates of affirmative action have argued that African Americans, for example, lag far behind whites in income, educational achievement, job advancement, and living standards. They claim that these differences are the consequence of many generations of racial discrimination and that affirmative action is the best way to overcome quickly the continuing negative effects of past discrimination.

Opponents of affirmative action view it as “reverse discrimination” based on race and, therefore, a violation of the idea that the Constitution is “color-blind.”

The Court has upheld aspects of affirmative action while striking down extreme versions of this concept. In Regents of the University of California v. Bakke (1978), for example, the Court ruled that a university could take into account race and ethnicity when making decisions about the admission of students. However, the Court ruled that an affirmative action plan based on rigid racial quotas to boost admission of minority students to a university was unconstitutional. In United Steelworkers of America v. Weber (1979), the Court permitted an employer's voluntarily imposed and temporary affirmative action program. That program would encourage unskilled black workers to obtain training that would lead to better, more skilled jobs, in which black Americans historically have been underrepresented. Once again, however, the Court rejected rigid, race-based quotas in hiring and job advancement.

In United States v. Paradise (1987), the Court upheld a temporary and “narrowly tailored” quota system to bring about job promotion for black state troopers in Alabama. The state's affirmative action plan imposed a “one black-for-one-white” promotion quota. This was justified, the Court said, by the “long and shameful record of delay and resistance” to employment opportunities for black Americans in the Alabama state police force.

Gender-based issues of equality

Not until the 1970s did the Court extend to women the 14th Amendment's guarantee of “equal protection of the laws.” One hundred years earlier, in Bradwell v. Illinois (1873), the Court had refused to use the equal protection clause to overturn a state government's ruling denying a woman a license to practice law. The denial was based strictly on the person's gender, but the Court ignored this flagrant violation of “equal protection of the laws.” Writing for the Court, Justice Joseph P. Bradley justified the decision in Bradwell with a paternalistic explanation: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life [such as being a lawyer]…. [T]he domestic sphere [is] that which properly belongs to the domain and functions of womanhood.”
The Court's paternalism toward women reflected the general view of the public in the latter half of the 19th century. The late 19th-century Court also ruled that the 14th Amendment did not require state governments to permit women to vote (Minor v. Happersett, 1875) or to serve on juries (Strauder v. West Virginia, 1880). It took the 19th Amendment to the Constitution (1920) to overturn the Court's decision against women's voting rights. Not until 1975, in Taylor v. Louisiana, did the Court overturn Strauder and rule against state exclusion of women from jury duty.

Since the 1970s women have successfully challenged restrictions that appear to violate the 14th Amendment's equal protection clause. In Reed v. Reed (1971), for example, the Court used the 14th Amendment to nullify a state law that discriminated against women in serving as the administrators of the estates of the deceased.

In 1987, in Johnson v. Transportation Agency of Santa Clara County, the Court endorsed a carefully crafted, temporary, and voluntary affirmative action plan to boost job promotion opportunities for women. The Court held it was permissible to take into account a woman's gender as a positive factor in promotion to a higher-ranking position because women had been systematically denied access to such positions in the past.

In 1996, in Romer v. Evans, the Supreme Court struck down an amendment to the constitution of Colorado that violated the 14th Amendment's equal protection clause by discriminating against a class of people including homosexuals, lesbians, and bisexuals. Gay people, as a class, had been singled out, said the Court, and denied the right to seek protection from the government against discrimination based on membership in that class.

Continuing controversy

Since the 1970s Americans have tended to agree about the constitutionality and justice of guaranteeing equality of civil rights and liberties to all individuals in the United States, regardless of race, ethnicity, or gender. Also since the 1970s, however, Americans have argued about the issue of affirmative action to remedy the effects of past discrimination against racial minorities and women.

Is any kind of affirmative action plan a violation of the equal protection clause? Or is affirmative action the best short-term and temporary means of reversing many generations of unjust discrimination?

The U.S. Congress endorsed limited uses of affirmative action to redress past injustices in the Civil Rights Act of 1991. However, in Adarand Construction, Inc. v. Pena (1995), the Court held that all race-based classifications, including government affirmative action programs, should be subjected to the standard of strict scrutiny. According to Justice Sandra Day O'Connor, all government classifications by race “should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” Policies or programs based on racial classifications—including those designed to boost the opportunities of minorities in an attempt to overcome the negative effects of past discrimination—have to be narrowly defined and designed to advance a compelling government interest. Otherwise, they could be struck down as unconstitutional infringements of the 14th Amendment.

There has been continuous public controversy about the constitutionality and morality of affirmative action programs in education, government, and private enterprise. Citizens and the courts are likely to face tough decisions about modification or termination of policies that sanction unequal treatment of groups in the pursuit of remedies for past injustices.

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