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Bolling v. Sharpe - "due Process" Requires "equal Protection"

amendment warren liberty fourteenth

Chief Justice Warren was well aware of the legal difficulties in extending the principles of the Brown decision to the District of Columbia. The Fourteenth Amendment, with its Equal Protection Clause, had been adopted in 1868 to protect individuals--particularly the former slaves--against injustice at the state and local level. It was never intended to affect the federal government, which has authority over the District of Columbia.

To resolve this difficulty, Chief Justice Warren incorporated the Fourteenth Amendment's Equal Protection Clause into the Fifth Amendment, which does apply to the federal government. Under the Fifth Amendment, no person "shall be deprived of life, liberty, or property, without due process of law." The phrase due process, Warren argued, must include "equal protection of the laws."

The Fifth Amendment was adopted 80 years before the Fourteenth Amendment. The two amendments had entirely different legislative histories, and the courts had given differing interpretations to "due process" and "equal protection." As Chief Justice Warren recognized, the two phrases are "not always interchangeable." Nevertheless, Warren maintained that in some sense, due process implies equality. The two concepts "both stemming from our American ideal of fairness, are not mutually exclusive."

Whatever the term means, the Fifth Amendment required due process only when the federal government was acting to take away life, liberty, or property. Warren did not claim that segregation deprived black school children of life or property. However, he declared that segregation did take away their "liberty" if that word was defined in the broadest sense possible.

The Chief Justice declared that "Liberty under law extends to the full range of conduct which the individual is free to pursue." Any legal conduct, such as going to school, is part of this constitutionally protected liberty. Thus the government cannot restrict going to school--or any other personal conduct--without a "proper" objective.

Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

In Bolling v. Sharpe, the Supreme Court practiced a form of reverse incorporation. For some years, the Court had argued that the Fourteenth Amendment incorporated the Bill of Rights. In Bolling, it ruled that the Bill of Rights incorporated part of the Fourteenth Amendment. Subsequent decisions have recognized that due process and equal protection are not always coextensive. Overall, however, the Court has continued to hold that federal as well as state laws must be in accordance with the Fourteenth Amendment's Equal Protection Clause.

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