Civil Rights and Equal Protection

The notion of equality was so restricted in the late eighteenth century that the term or even the concept of equality did not appear anywhere in the Constitution or Bill of Rights. Still, the limited idea of equality held by the framers of the Constitution was actually considered bold at the time. Equality was primarily extended only to white adult males with property, not to African Americans, women, or the poor. Not until 1868, following the Civil War, was the concept of equality written into constitutional law. Even then, when the Fourteenth Amendment defining citizenship was drafted, the Equal Protection Clause quietly appeared in a draft with little debate or discussion. The amendment forbade states from "deny[ing] any person within its jurisdiction the equal protection of the laws." As written, the clause only applied to state governments, not federal. The primary intent of the amendment at the time was to provide citizenship to persons of color and assure African Americans they would enjoy the same constitutional civil rights protections as whites. The concept of sex discrimination was nowhere in sight.

Shortly after adoption of the amendment, the Supreme Court began a lengthy period of very narrow interpretations. In Slaughterhouse Cases (1873), the Court held that the only national rights protected from state infringement were the rights to petition the federal government and vote in federal elections. Any other state restrictions were beyond the scope of federal protection. That same year in Bradwell v. Illinois, the Court upheld a state law banning women from the practice of law. Reflecting social attitudes of the day, the Court found women generally unfit for the rigors of law practice and more suitable to domestic activities. Furthermore, the Court ruled in 1875 that the federal government could not require states to allow women to vote. As a result, until adoption of the Nineteenth Amendment in 1920, women held less of a voting right than African Americans.

Following the Slaughterhouse decision, Congress passed the Civil Rights Act of 1875, protecting African Americans from discrimination in public transportation, inns, theaters, and other types of public places. The Court in Civil Rights Cases (1883) struck down the law by holding the Fourteenth Amendment only applied to state government discrimination, not actions by private persons. In addition, the Court ruled that Congress could only address discrimination after it occurred and could not prohibit discriminatory state actions in advance. The next major decision came in 1896 when the Court sanctioned the "separate but equal" doctrine in Plessy v. Ferguson. The doctrine meant that the Equal Protection Clause would not be violated if facilities provided for African Americans were equal to those provided for whites. As a result, state-imposed racial segregation became pervasive, particularly in the South, including which had separate public water fountains and toilets. States also imposed poll taxes and property and literacy tests to limit African Americans from voting. Consequently, over 70 years would pass after adoption of the Fourteenth Amendment before African Americans would begin to benefit from it.

Ironically, aliens, citizens of foreign countries in the United States, fared better than African Americans during this period under the Equal Protection Clause. In Yick Wo v. Hopkins (1886), the Court found that San Francisco's policy for renewing business permits was differently applied to Asians and whites with no justifiable governmental reason. Such arbitrariness violated the Asians' right to earn a living, essential for an individual's enjoyment of life. Importantly, the Court ruled that the Fourteenth Amendment protects all individuals from discrimination, not just U.S. citizens. Congress may hold the constitutional power to regulate immigration into the country, but once an individual is allowed entrance, they enjoy the same constitutional protections as citizens.

Through this early time, the Supreme Court focused almost solely on equality of opportunity in the economic marketplace including state taxation issues and economic regulation. The Court established its first standard review test for equal protection cases in Lindsley v. Natural Carbonic Gas Co. (1911), a fairly weak test requiring states to show only that a reasonable basis existed for group restrictions. The Court recognized a broad right of government to distinguish between different groups in regulating economic activities as long as the distinctions were not arbitrary. The Equal Protection Clause remained a very weak form of constitutional protection for over half a century after its adoption, unresponsive to claims of individual rights.