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Equal Protection

Constitutional Law, Legislation, The Common Law, Further Readings, Cross-references

The constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness. The Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The concept of equal protection and equality in the United States is as old as the country itself. In 1776, THOMAS JEFFERSON and the American colonists boldly announced the "self-evident" truth of human equality. Yet the meaning of equality was neither obvious nor clearly defined. The "peculiar institution" of SLAVERY was intricately woven into U.S. economic, social, and political fabric. Many Americans owned slaves, and most, including Jefferson himself, believed in the inferiority of the black race. JAMES MADISON and the other Founding Fathers drafted a national constitution that protected the slave trade and recognized the rights of slave owners. Article I, Section 2, of the Constitution counted a slave as only three-fifths of a person for the purposes of representation in Congress.

Slave codes permitted slave masters to buy, sell, and lease blacks like PERSONAL PROPERTY. Slaves owed their masters an unqualified duty of obedience. Slave owners, on the other hand, were free to do as they pleased, short of murdering their slaves. Only community mores, common sense, and individual conscience restrained slave owners. Very few laws protected slaves from abusive or maniacal masters, and those that did were seldom enforced. In 1857, the U.S. Supreme Court placed its stamp of approval on the institution of slavery, holding that slaves were not "citizens" within the meaning of the Constitution, but only "property" lacking any constitutional protection whatsoever (DRED SCOTT V. SANDFORD, 60 U.S., 15 L. Ed. 691 [19 How.] 393).

From the inception of the United States, then, a gulf has separated the Jeffersonian ideal of human equality from the reality of racial inequality under the law. The tension separating the aspirations of the Declaration of Independence from the barbarism of slavery ultimately erupted in the U.S. CIVIL WAR. The victory won by the North in the War between the States ended the institution of slavery in the United States and commenced the struggle for CIVIL RIGHTS that was to continue into the twenty-first century. This struggle began with the ratification of the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments during the Reconstruction period following the Civil War.

The THIRTEENTH AMENDMENT abolished slavery and INVOLUNTARY SERVITUDE, except when imposed as punishment for a crime. The FIFTEENTH AMENDMENT did not expressly grant black citizens the right to vote, but it prohibited state and federal governments from denying this right based on "race, color, or previous condition of servitude." Each amendment gave Congress the power to enforce its provisions with "appropriate legislation."

Although both of these amendments were important, the FOURTEENTH AMENDMENT has had the greatest influence on the development of civil rights in the United States. Section 1 of the Fourteenth Amendment provides that

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

The first clause emasculated the Dred Scott decision by bestowing national citizenship upon all blacks born or naturalized in the United States, making them eligible for federal protection of their civil rights. The PRIVILEGES AND IMMUNITIES CLAUSE, once believed a potential source for civil rights, was narrowly interpreted by the Supreme Court in 1873 and has since remained dormant (SLAUGHTER-HOUSE CASES, 83 U.S., 21 L. Ed. 394 [16 Wall.] 36).

The EQUAL PROTECTION CLAUSE was also narrowly interpreted by the Supreme Court in the nineteenth century, but it still became the centerpiece of the CIVIL RIGHTS MOVEMENT after WORLD WAR II (1939–45). It spawned desegregation, INTEGRATION, and AFFIRMATIVE ACTION and it promoted equal treatment and concern for the races under state law. It also provided the country with a starting point for a meaningful dialogue regarding the problems of inequality and discrimination. This dialogue has manifested itself in U.S. constitutional, statutory, and COMMON LAW.

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