Equal Protection

The notion of equal protection or equal treatment is rooted in the Anglo-Saxon common law. When HENRY II ascended the throne in 1154, England was divided into political subdivisions consisting of villages, hundreds, shires, and towns. The king, feudal lords, and local assemblies all wielded power to some extent. But there were no effective national executive, legislative, or judicial institutions that could administer laws in a uniform and organized manner. Henry II changed this condition by creating a royal common law, which his officials disseminated throughout the kingdom. Thus, the king's law was made "common" to citizens of the entire realm.

The idea of equality under the law is also rooted in the RULE OF LAW and in the principle that no one is above the law, including the king and the members of Parliament. This principle found expression in Bonham's case, 8 Co. 107a, 77 Eng. Rep. 638 (K.B. 1608), in which eminent English jurist SIR EDWARD COKE wrote that "the common law will … controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void."

In 1761, JAMES OTIS, an American colonist, relied on Coke in the WRITS OF ASSISTANCE CASE, in which he stated that any act of Parliament "against the constitution is void" and that it was the duty of the courts to "pass such acts into disuse" because they contravened "the reason of the common law." In a recent application of this principle, President RICHARD M. NIXON lost his battle with the rule of law when the Supreme Court forced him to surrender the infamous WATERGATE tapes against his assertion of EXECUTIVE PRIVILEGE (UNITED STATES V. NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 [1974]).

Courts have also relied on the concept of equal treatment in explaining the common doctrine of STARE DECISIS. When a court has laid down a principle of law in one case, stare decisis requires the court to apply that principle to future cases involving a similar set of facts. Some commentators have suggested that stare decisis serves two policy considerations: continuity and predictability in the law. But this doctrine also promotes equal treatment, federal courts have reasoned, by permitting all similarly situated litigants to obtain the same results under the law.

The American Revolution was sparked by the idea of equality. In 1776, the colonists declared themselves independent of the British Empire, in which the government often acted as if it were above the law. Jefferson and the other revolutionaries announced their steadfast adherence to the rule of law and the idea of human equality. But the idea of equality has always been ambiguous and controversial. U.S. citizens still disagree about whether the Equal Protection Clause of the Fourteenth Amendment guarantees equality of condition, equality of result, or equality of treatment and concern under the law. This disagreement manifests itself in state and federal courthouses and the halls of Congress.