The Peoples’ Constitution: Equal Protection Under Law

By Ben Lenhart

Equal protection ranks among America’s most important constitutional rights. It protects Americans from being treated unequally by the government absent justification for such treatment. In many areas—such as race or national origin—the Constitution creates an extremely high bar for such justification.  A core purpose of the Equal Protection clause—when passed in 1868—was to eliminate discrimination against former slaves by state governments (and especially by the states of the former Confederacy). But since then, the scope of Equal Protection has greatly expanded and now protects Americans against many forms of unequal treatment whether based on race, gender, religion, alienage, sexual orientation, health status or other factors.


A Brief History of Equal Protection

Equal Protection was not included in the original Constitution or the Bill of Rights. It took the Civil War, and the deaths of more than half a million Americans, for the passage of what came to be known as the Civil War Amendments: the 13th Amendment banning slavery (1866), the 14th Amendment guaranteeing due process and equal protection (1868), and the 15th Amendment ensuring that the right to vote could not be denied based on race or status as a former slave (1870).

Here is the key language of the 14th Amendment: “… 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.” (emphasis added)

Note that the 14th prohibits action by states—in contrast, the First Amendment bans the federal government from abridging freedom of speech. Why the difference? After the Revolutionary War, many of the Founding Fathers saw the new federal government as the greatest threat to liberty, but after the Civil War many viewed state governments as the gravest danger to the important new rights set out in the 14th Amendenment.  Eventually the Supreme Court resolved this disparity by ruling that Equal Protection applies equally to all government actions—whether local, State or Federal.

Race Discrimination by the Government Itself

Because race was the driving force for the Equal Protection clause, the law is most developed in this area. Two infamous cases set the early tone: Dred Scott (just before the Civil War) ruled that current or former slaves were not citizens under the Constitution and that slaves could not gain freedom by entering free territory. In 1896 Plessey v. Ferguson introduced the idea of “separate but equal” and held that segregation by race was constitutional. Both are now considered among the Supreme Court’s greatest mistakes. The Civil War effectively reversed Dred Scott. Plessey took longer to reject. For decades, the Court  chipped away at separate-but-equal but finally and resoundingly rejected it in one of the most famous cases of all time: Brown v. Board in 1954, where a unanimous court held that racial segregation in schools was “inherently unequal” and thus violated Equal Protection. Similar rulings followed. Today, virtually all laws or government programs discriminating based on race are unconstitutional (but see below for possible exceptions). While banning race discrimination by the government itself was a crucial step forward for America, it left open many questions about other forms of discrimination.

Business Discrimination

Through the efforts of Dr. King and others, the 1960s Civil Rights Legislation and other laws now ban most racial discrimination by private employers and private businesses.  However, the constitutional “hook” is quite different for public vs. private discrimination: the Equal Protection clause bans the former while the Commerce Clause of Article I largely underpins the latter. Under the Commerce Clause, Congress can regulate businesses affecting interstate commerce. Citing this power, the Court has repeatedly upheld laws banning discrimination by many types of businesses and other enterprises.

For example, in the 1960s the Heart of Atlanta motel refused to rent rooms to African Americans, and argued that the 1964 Civil Rights Act (which banned such discrimination) was unconstitutional. The Court disagreed, holding that the motel affected interstate commerce, that the Civil Rights law was a constitutional exercise of Congress’s power under the Commerce Clause, and that the motel must abide by the law and stop discriminating.

Private or “Hidden” Discrimination

Sometimes persons or organizations discriminate in ways that are not easy to prove. Yick Wo is a famous example where the Court ruled that even hidden, unofficial discrimination violates the Constitution. While no discriminatory law was “on the books,” nevertheless San Francisco had denied laundry permits for 100 percent of the applications from Chinese nationals, but had approved nearly 100 percent for non-Chinese. The Court inferred racial discrimination from the strikingly disparate statistics, and ruled the city’s actions  unconstitutional. Yick Wo remains a potent tool to fight “unofficial” discrimination but only if proof of the “unofficial” discrimination can be found.

Of course, some forms of racism are beyond the reach of the law. The Constitution does not ban—and indeed the 1st Amendment protects—the right to engage in racist speech (unless certain narrow exceptions apply). For example, we deplore the KKK’s racist propaganda, however it is not the Constitution that will stop such speech, but rather strong and compelling “counter speech” that lays bare the falsehoods and evils of racism.

Affirmative Action

Affirmative action is a crucial exception to the Constitution’s ban on race discrimination. Here government actors (e.g., universities) openly discriminate based on race but with one vital difference—they do so with the express goal of helping rather than harming racial minorities. A sharply divided Court has struggled with the issue, with some Justices arguing that affirmative action is needed to address past discrimination while others argue it harms minorities and violates the very Equal Protection clause intended to help them. Among the latter group, Justice Thomas (currently the sole African American justice) stated in the Adarand case: “But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as other forms of discrimination. So-called ‘benign’ discrimination teaches many that because of chronic and apparently immutable handicaps, minorities can’t compete with them without their patronizing indulgence.”

Stay tuned—the constitutional fate of affirmative action is unsettled and could be decided by the appointment of the next Supreme Court Justice.

Korematsu and Strict Scrutiny

After Pearl Harbor, and based on fears that Japanese spies and saboteurs had infiltrated the Japanese-American community, many Japanese Americans were sent to internment camps. In the famous Korematsu case, the Court wrestled with the question of whether this violated Equal Protection. First, the Court stated that any state discrimination based on race was “highly suspect” and would pass constitutional muster only if it met the “strict scrutiny” test, i.e., was the government action necessary to achieve a compelling interest? A sharply divided court held that the interment was constitutional because—based on the facts before the court—the threat to the American homeland was grave and immediate and there was no less discriminatory way to address that threat short of the internment camps. Justice Jackson and others strongly dissented, and Korematsu has been sharply criticized as bad law, but the case was never overturned.

In fact, some argued after 9/11 that Korematsu could serve as the basis for race-based internments should additional terrorist attacks occur. Hopefully, this theory will never be tested, but if it is, the Equal Protection clause would serve as a powerful and hard-to-overcome roadblock to any effort by the state to target a group based on race. Equal Protection is also a bulwark against many other forms of discrimination (e.g., discrimination based on gender or sexual orientation) and those will be addressed in another column.


[Ben Lenhart is a graduate of Harvard Law School, and has taught constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro. He will be the presenter during Hillsboro’s Eat, Drink and Be Literary Lecture Series in October.]

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