The Constitution and the Court during Reconstruction

The Fourteenth Amendment

Equal protection clause.  This clause provides that no state shall deny “to any person within its jurisdiction the equal protection of the laws.”  Unlike the due process clause, the equal protection clause has no parallel provision in any other part of the Constitution.  Nonetheless, the Supreme Court has ruled that the federal government is held to the same equal protection standards as the states because the due process clause of the Fifth Amendment contains an “equal protection component.”  Bolling v. Sharpe (1954).   The clause does not provide a definition of “equal protection,” but its initial purpose, in association with the privileges or immunities and due process clauses, was to establish equality before the law for newly emancipated slaves.  

The guarantee of equal protection to “persons” rather than to “citizens” has proved to be significant.  In Santa Clara County v. Southern Pacific Railway Company (1886), for example, the Supreme Court held that corporations are persons.  Therefore, corporations are entitled to equal protection of the laws.  In Plyler v. Doe (1982), the Court held that a Texas statute that denied public education to children of aliens living in the country illegally violated the equal protection clause, again because the clause protects “persons,” not just “citizens.” 

The evolution of the equal protection clause in Supreme Court decisions is convoluted and only highlights are possible here. The starting place for understanding equal protection analysis is the realization that all laws create classifications of persons and then treat people differently than others because of the classification.  For example, income tax laws place tax payers into different tax categories.  High income earners are treated differently than those with low incomes. School attendance laws classify people according to age and then impose restrictions on children that they do not impose on adults.  Laws that prohibit convicted felons from voting in certain elections classify people based on their criminal records and then treat them differently than those who do not have criminal records.  When are classifications that treat people differently constitutionally acceptable?  On what basis might classifications and resulting differential treatment violate the equal protection clause?  What about private discrimination?

Application of the Equal Protection Clause

In 1883, the Supreme Court announced what has come to be known as the state action doctrine: the Fourteenth Amendment prohibits only state and local laws and racially discriminatory acts done under state authority.  It does not prohibit acts of private discrimination. The court struck down several provisions of the Civil Rights Act of 1875 that prohibited racial discrimination in inns, on public conveyances, and in theaters and other places of public amusement. Civil Rights Cases (1883).  Determining the line between public and private discrimination has been one of the divisive areas of interpretation since then.  

For many years the state action doctrine co-existed with the “separate by equal” doctrine.  This era began when the court upheld the Louisiana Separate Car Act that prohibited blacks from riding in the same passenger train cars as whites.  Plessy v. Ferguson (1896).  For years, litigants challenged the doctrine with evidence that separate school facilities maintained for blacks were not equal to those maintained for whites.  In Brown v. Board of Education (1954), the court scrapped the separate but equal doctrine.  That decision ushered in a new era of equal protection analysis and a series of cases challenging public school desegregation efforts.  

In 1880, the Supreme Court struck down a West Virginia statute that excluded black males from serving on juries, but it upheld a statute that excluded women from jury service.  The court reasoned that the equal protection clause is aimed only at racial discrimination, not gender discrimination.  Strauder v. West Virginia.   Since 1880, however, court has expanded its equal protection analysis beyond racial classifications.  It also has adopted what are known as “levels of scrutiny” that it applies when confronted with cases that challenge laws that treat groups of people differently.  

Three Categories of Equal Protection Analysis

Federal courts have acknowledged that the three categories for equal protection analysis described below are imperfect, and they are subject to change.  The categories also are intensely controversial, as are decisions about the placement of different groups of people into the categories.  That is so, because the category in which a group is placed determines how rigorously federal courts will examine laws that treat the people in that group differently than others.  

Classifications subject to “strictest judicial scrutiny”.  Laws that classify and treat people differently because of race, national origin, religion, or legal alienage, and laws that burden the fundamental rights of voting, interstate travel or access to the courts, are presumed to be unconstitutional under the equal protection clause.  They are subjected to the strictest judicial scrutiny when challenged in a lawsuit. However, if the government can show that the classification serves a compelling government interest and that the law is narrowly tailored to achieve that interest, then the unequal treatment of persons within that classification will be upheld.  

Examples:  During World War II, the United States government persuaded the court that classifications based on race and alienage served a compelling interest and justified the relocation and internment of Japanese and Japanese-American citizens.  Korematsu v. United States (1944).    In 1967, by contrast, the court held that the state of Virginia could not demonstrate a compelling government interest to justify its statute prohibiting interracial marriage.  (Loving v. Virginia)  

Classifications subject to “intermediate judicial scrutiny Laws that classify and treat people differently because of gender or being the offspring of unmarried parents are examined closely, but they are not presumed to be unconstitutional.  If the government can show that the classification is substantially related to an important government purpose and the statute is drafted to advance that purpose, then the statute will be upheld.

Examples:  In Rostker v. Goldberg  (1981), the United States government demonstrated to the court’s satisfaction that a statute excluding women from the military draft was justified because women were barred from active combat.  The state of Oklahoma, by contrast, was not able to demonstrate that an age law discriminating between women and men with respect to the purchase of 3.2% beer (women allowed to purchase at age 18; men, at age 21) was substantially related to the state’s important government interest in promoting traffic safety.  (Craig v. Boren, 1976)

Classifications subject to “rational basis judicial scrutiny”.  All other statutes that create classifications of persons and treat them differently—including classifications based on age, wealth, and disability—are presumed to be constitutional.  The court inquires only whether the statute is rationally related to a legitimate government interest.   

Examples:  Statutes subjected to rational basis analysis usually are upheld.  But there are exceptions.  In 1971, in Reed v. Reed, the court held that the Idaho legislature had no rational basis for a law designating the male offspring as the administrator of estates in which the decedent named no administrator.