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Equal Protection in the United States

By Edited Oct 11, 2015 0 0

The Supreme Court, despite being the final interpretive word on the United States constitution, is made up of fallible persons. The late Chief Justice William Rehnquist said that the Supreme Court is not immune from outside influence (paraphrase Rehnquist, 1987) and this is very apparent when analyzing the cases dealing with equal protection. The Fourteenth amendment says: “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 they reside…nor shall any State deprive any person of life, liberty, and property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (US Constitution, XIV Amendment). History has shown how an amendment that seems pretty self explanatory can be manipulated and interpreted in ways where it seemed to have not even existed. The equal protection cases show the human nature of the high court and how societal values and influences shape constitutional interpretation, most times for the worse.

Dredd Scott v. Sanford sets a cold, somber tone on constitutional interpretation by affirming that slaves were nothing but lawful property of white men. Plessy V. Ferguson Furthered this notion of “racial difference” by stating that separate but equal facilities were constitutional, even though in reality if you are separating something because of race, you can’t obviously see it as equal. In the opinion of the Court in Plessy Justice Brown States: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” (J. Brown, Plessy v. Ferguson,p.928) This is an ignorant statement. Making separation because of race legal shows that the government recognizes a difference, which has to be one of inferiority, since there is no other reason, legal or reasonable, to justify it. Justice Harlen’s lone dissent affirms this. He called the separation because of race a “badge of servitude.” (J. Harlen, Plessy v. Ferguson) These case clearly show the dark side of humanity within the Supreme Court and how personal interpretation, social influence, and fear play a crucial role in shaping our constitution. This is the “closing their eyes to the constitution” that Chief Justice Marshall spoke about in Marbury v. Madison. Instead of reading that all citizens are equal before the law, they closed their eyes to this and even went against human reason in lowering the dignity of a human being to that of mere property, solely because of one’s color.

The Warren court thankfully lifted this dark pall of immoral law in the unanimous decision of Brown v Board of education. His view on reapportionment as a guaranty of equal protection shows that law should have its basis in reason and morality, he stated: “if the one person, one vote principle had been laid down years earlier, many of the nation’s legal sores would have never festered. Many of our problems would have been solved a long time ago if everyone had he right to vote, and his vote counted the same as everybody else’s.” (Swartz quoting Warren, 1993, p.279) Chief Justice Warren had a great gift in seeing the injustices of unequal standards and being able to present them in a common sense nature within the context of law. In other words, he brought these topics of law to their moral core by showing what was truly at the heart of the matter.

The court ruled unanimously to overrule Plessy v Ferguson in Brown v Board of Education which ended legalized segregation. A New York Times article called the outcome a “Sociological Decision.” “According to Reston (author of the article), the Court had relied more of the social scientists than on legal precedents….The Court’s opinion read more like an expert paper on sociology than a Supreme Court opinion.” (Schwartz, 1993, p.302) This is actually an excellent point to consider. The opinion shows the importance that natural law, human reason, and morality has on determining true law. We all know in our hearts that the Brown decision was the right decision, even if all the legal language isn’t there, and the lack of legalese does not diminish it as law. This decision clearly shows that stare decisis or precedent have no bearing when something is inherently wrong. The constitution itself attest to this by the fact that its purpose is to “form a more perfect union” and “establish justice,” things that are outside the boundaries of written words. In other words, constitutional interpretation may revert to using means such as moral ethics or reason in order to establish justice in its words. Law itself is not supreme, but a roadmap or guide to the supreme. Supreme in this sense can mean the perfect law (or union), ultimate justice, or God if you believe (if not, the other definitions will suffice for now). Perfect union and justice is what the constitution sets out to create. St. Thomas Aquinas, the great philosopher and theologian of the middle ages, said that: “law involves a reasoned directive of acts to an end. But in all ordered movers the force of the secondary mover must derive from that of the primary mover, because the secondary mover moves only insofar as it is moved by the primary.” (Aquinas, Summa Theologica) Aquinas is saying that law must be derived from a higher law, so that it may guide people to that higher law. In a sense, this is what Marshall is saying when he stated: “Those then who controvert the principle that the constitution is to be considered…as paramount law, are reduced to the necessity of maintaining that courts must close their eyes to the constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions.” (J. Marshall, Marbury v Madison) Marshall shows that the constitution is the “paramount law” and all laws must be judged and derived from it. In interpreting the constitution then, one must use the paramount law above it. Chief Justice Warren and the Brown opinion did just that. They went above seeing just the law preceding them and used the higher law of reason and morality to make the right decision. Equal protection in the constitution began to take its true form by this decision.

There are always going to be problems in gaining a true balance in equal protection. In attempts to bridge the gap between races there is often counter-racism involved by default. In Grutter v Bollinger a white person was denied admission to a law school, which she alleged was because of her race since the school had a “critical mass” policy seeking to help minority groups. The school’s policy gave a potential “plus factor” to those who were African-American, Hispanic, and Native American. These programs are supposed to foster equality, but can do the opposite at time. In this case the dissent points out that there is disparity in people admitted among the three minority groups, which raises questions to their “critical mass” policy. Rehnquist claims: “…we are bound to conclude that the law School has managed its admissions program, not to achieve a “critical mass” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the court itself calls “patently unconstitutional.”(J. Rehnquist, Grutter v Bollinger, p.998) He also says that their lack of a precise time limit on their policy is a problem because “discrimination on the basis of race is invidious.” (J. Rehnquist, Grutter v Bollinger) These programs can be dangerous because they invite discrimination and blur the lines of equal protection.

The fourteenth amendment has come a long way since its inception, but is still constantly developing. Decisions have gone from one end of the spectrum to the other in search of the correct balance. Impediments and influences to interpretation will always play a role in how equal protection will be executed and decided. The cases that deal with equal protection show that stare decisis should not be followed all the time, and that activism is necessary when a law is unjust. The Warren court proved this in its’ Brown case decision. Cases on equal protection clearly show that many factors should go into interpreting the constitution, including throwing out precedent law and using reason and morality to guide decisions.


Aquinas, Thomas (1271) translated by McInerny, Ralph. Excerpt from Summa Theologica from Selected Writings. London: Penguin Books (1998).

Grutter v. Bollinger, U.S. 123 S.CT. 2325 (2003).

Marbury v. Madison, 5 U.S. 137 (1803).

Murphy,W., Fleming, J., Barber, S., Macedo, S. (2003). American Constitutional Interpretation (3rd Edition). New York: Foundation Press.

Plessy v. Ferguson, 163 U.S. 537 (1896).

Rehnquist, William (1987), The Supreme Court.

United States: Vintage.

Schwartz, Bernard (1993). A History of the Supreme Court.

New York: Oxford University Press.




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