Equal Protection Clause

What is the Equal Protection Clause?

Equal Protection Clause

Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment is the third part of a legal trinity intended to achieve one objective: securing certain fundamental rights for blacks and recently emancipated slaves. The third part of this trinity, the Equal Protection Clause, prohibited state legislatures from enacting laws that discriminated against blacks with respect to the fundamental rights protected by the Privileges or Immunities Clause.

As described by Raoul Berger, “the three clauses of the [Fourteenth] Amendment were a trinity, three facets of one and the same purpose… the privileges or immunities clause conferred substantive rights which were to be secured through the medium of two adjective rights: the equal protection clause outlawed statutory, the due process clause judicial, discrimination with respect to those substantive rights.”

However, contrary to what school children are taught today, the Fourteenth Amendment and the Equal Protection Clause did not establish social or political equality between the white and black races. Nor did the Fourteenth Amendment prohibit public school segregation or state laws prohibiting black people from voting. Only those basic, fundamental rights enumerated in the Civil Rights Act of 1866 were protected by the Fourteenth Amendment. As such, deplorable racial distinctions that did not encroach upon these fundamental rights were constitutional. Discriminatory state laws, including those permitting or requiring school segregation, were constitutional both before and after the Fourteenth Amendment became law.

Racial Disclaimer

No decent or moral person today would argue in favor of legal, political or social distinctions or preferences based on race. Federal or state laws aimed at targeting, discriminating against, or subjugating any person(s) based on race are immoral. However, the takeaway is that the federal government, and the Supreme Court in particular, were not empowered with unlimited authority to cure all evils. The federal government only has those specific powers delegated to it. Any exercise of federal power beyond those powers delegated is unconstitutional. This is true even if an unconstitutional use of federal power eradicates something evil and immoral like government school segregation.

It’s worth remembering George Washington’s Farewell Address, when he warned against the federal government aggrandizing its powers outside the scope of Article Five and the amendment process. Washington warned that if, “the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.”

Brown v. Board of Education, 1954

The Supreme Court’s 1954 decision in Brown v. Board of Education eradicated state sponsored racial segregation from public schools throughout the United States. No decent person in America today would condone race based segregation in government schools. As such, most people today view the United States Supreme Court’s decision in Brown v. Board of Education as correct because the appropriate moral decision was reached. However, the problem was that instead of acknowledging the Fourteenth Amendment’s limited scope, the Supreme Court, led by Chief Justice Earl Warren and Justice Felix Frankfurter, handed down a morally righteous decision that was intellectually dishonest to its core, and had no basis whatsoever to the understood meaning of the Fourteenth Amendment.

Meaning of Fourteenth Amendment and Equal Protection Clause

As explained earlier, the Fourteenth Amendment protected certain fundamental rights for blacks. These fundamental rights were enumerated in the Civil Rights Act of 1866 and were generally understood to be the same rights protected by the Privileges and Immunities Clause of Article 4, Section 2. These fundamental rights consisted of the right, “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property“. The Equal Protection Clause merely prohibited states from passing laws that discriminated against blacks with respect to these enumerated, fundamental rights. Worded differently, whites and blacks had to be treated equally under the law with respect to these fundamental rights. State laws could abridge certain fundamental rights of blacks, so long as those same fundamental rights of whites and all other citizens were also equally abridged.

Fourteenth Amendment and Equal Protection Did Not Prohibit Discriminatory State Voting Laws

The Equal Protection Clause of the Fourteenth Amendment did not empower the federal government to enforce equal voting rights between whites and blacks upon the states. Both the text of the Fourteenth Amendment and the debates in the Senate and House of Representatives make this clear. Section Two of the Fourteenth Amendment expressly acknowledged that states retained the power to deny voting rights to blacks. However, Section 2 of the Fourteenth Amendment proportionately reduced Congressional representation in the House of Representatives for states that denied blacks the right to vote. In addition, uncontested statements made by members of both the House of Representatives and the Senate confirm Congress’ unambiguous intent to exclude voting rights from the scope of Privileges or Immunities and Equal Protection. If the scope of the Fourteenth Amendment did not protect or guarantee equal voting rights for blacks relative to whites, then how could anyone reasonably or logically construe the Equal Protection Clause as a power federal courts could use to force racial integration in schools?

The thirty-ninth Congress expressly excluded black voting rights from those rights protected by the Privileges or Immunities Clause. According to Senator Jacob Howard, one the drafters of the Fourteenth Amendment, “the first section of the proposed amendment does not give . . . the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured. John Bingham, the prominent Republican Congressman from Pennsylvania said, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States“. These two statements are merely a tiny sample of similar statements expressed by other members of the thirty-ninth Congress. Contrary to the Supreme Court’s statement in Brown v. Board of Education, that Congress’ intended meaning of the Fourteenth Amendment was “inconclusive” and could not “be determined with any degree of certainty“, the Congressional debates around the scope of the Fourteenth Amendment make clear that voting rights for blacks were not protected by the Fourteenth Amendment.

Fourteenth Amendment and Equal Protection Did Not Prohibit School Segregation

The Fourteenth Amendment and the Equal Protection Clause did not prohibit racial segregation in public schools throughout the United States. As discussed above, the Privileges or Immunities protected by the Fourteenth Amendment only encompassed a limited set of fundamental rights. These fundamental rights did not include black suffrage or the racial integration of public schools. In fact, the Fourteenth Amendment passed Congress in 1866, two years after Congress had racially segregated the public schools inside Washington D.C.  School segregation continued in Washington D.C. until the 1950s. It’s an absurdity to argue the same Congress that implemented racial segregation in Washington D.C. schools in 1864 then passed a Constitutional amendment in 1866 that forced school integration based on race. This idea is even more absurd since school segregation in Washington D.C. continued for another ninety years after the Fourteenth Amendment passed Congress in 1866. In addition, quoting Raoul Berger, “The [Fourteenth] Amendment originated as a congressional Joint Resolution, so it is entirely appropriate to look to the light shed contemporaneously by the District of Columbia bills on the meaning of the Resolution. In truth, it is unrealistic to presume that a Congress which has plenary jurisdiction over the District and yet refused to bar segregation there would turn around to invade State sovereignty, which the framers were zealous to preserve, in order to impose a requirement of desegregation upon the States.”

It’s worth noting that public schools in Boston, Massachusetts, the most pro-black jurisdiction in the country at that time, permissibly segregated schools by race. Moreover, many statements were made by members of the thirty-ninth Congress, both expressly and impliedly, acknowledging the constitutionality of school segregation based on race. For example, Congressman James F. Wilson of Iowa, discussing the scope of the “civil rights” protected by the Privileges or Immunities Clause of the Fourteenth Amendment, said, “civil rights . . . do not mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights.”

In addition, a “no discrimination” clause was deleted during the drafting of the Civil Rights Act of 1866. This Civil Rights bill encompassed the intended scope of the rights to be protected by the eventual Fourteenth Amendment. This “no discrimination” clause was deleted to remove references to discriminatory practices like school segregation. School segregation was a matter that had always been reserved to the states. As such, Congress removed this “no discrimination” clause to leave school segregation or integration to the states. One of the NAACP’s chief historians, Alfred Kelly, considered the removal of the “no discrimination” clause from the Civil Rights Act as “very damning” evidence that Congress intended to keep school segregation outside the scope of the Civil Rights Act of 1866 and the Fourteenth Amendment. Sadly, no credible or intellectually valid legal case can be made that the Fourteenth Amendment authorized the federal government to interfere with state segregation laws.

United States Supreme Court’s Decision in Brown v. Board of Education

Separate but Equal

Separate but Equal

A detailed analysis of the Supreme Court’s decision in Brown v. Board of Education is beyond the scope of this page. The result of the case was that the Supreme Court struck down race-based school segregation laws throughout the United States based on the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court’s decision overturned the established precedents of Hall v. DeCuir, 1877, and Plessy v. Ferguson, 1896. Plessy v. Ferguson was the infamous case that created the “Separate by Equal” doctrine and upheld the constitutionality of state laws requiring racial segregation in public facilities. The import of Brown v. Board of Education is simply that the Supreme Court based its decision entirely on the personal opinions of the justices. The court’s decision had no basis whatsoever in the Constitution or the history of the Fourteenth Amendment.

Justice Felix Frankfurter was instrumental in driving the result of the case and in making the Supreme Court’s decision unanimous rather than split. Justice Frankfurter’s former law clerk, William Coleman, who was involved with the case on the NAACP‘s side, said Justice Frankfurter had made his decision in Brown v. Board of Education before the first arguments in the case had even been heard. In addition, all of the Supreme Court justices on the court were well aware of the legislative history behind the Fourteenth Amendment. Despite the overwhelming evidence as to the meaning of the Fourteenth Amendment and the Equal Protection Clause, the Supreme Court said the history of the amendment was “inconclusive” and could not “be determined with any degree of certainty.”

Conclusion: Brown v. Board of Education

School Segregation Banned under Equal Protection

School Segregation Banned under Equal Protection

Brown v. Board of Education was clearly decided appropriately on moral grounds. However, from a legal and Constitutional perspective, the case stands as an example of one of the boldest and most egregious examples of judicial usurpation in American history. The Warren Court’s decision in Brown v. Board of Education dramatically and illegitimately expanded the power of the Supreme Court, and created a dangerous precedent still felt throughout the United States today. For the past sixty years, the Supreme Court has claimed the power to review state laws under the Equal Protection Clause that have nothing to do with securing certain fundamental rights for black people.

Today, the United States Supreme Court and lower federal courts hear Equal Protection cases pertaining to issues ranging from gay marriage to taxation. Since these matters have nothing to do with securing certain fundamental rights for blacks, it should be apparent the courts are simply making up the law out of thin air. As such, these decisions tend to reflect the arbitrary, personal opinions of the judges. For example, with respect to the two issues mentioned above, federal judges tend to protect gay people from state laws and state constitutional amendments that define marriage as between a man and a women. By contrast, progressive income taxation, or any sort of disparate, progressive state (or federal) taxation that treats taxpayers differently based on income, are generally held to be permissible.

Notable Equal Protection Clause Supreme Court Decisions

In the years following Brown v. Board of Education, the Supreme Court began to use the Equal Protection Clause as one of its many tools to strike down state laws not to the liking of the court. These cases include:

Green v. County School Board of New Kent County, 1968: forced racial integration in public schools through school busing programs.

Regents of the University of California v. Bakke, 1978: determined race could be a factor in university admissions for purposes of academic diversity, but using racial quotas for admissions or excluding someone from admission because of his or her race violated Equal Protection.

Craig v. Boren, 1976: held sex discrimination was impermissible under the Equal Protection Clause. The Supreme Court struck down an Oklahoma law that made 18 the legal drinking age for females and 21 the legal drinking age for males. The Supreme Court merely substituted its judgment for that of Oklahoma’s legislature in striking down the state law.

United States v. Virginia, 1996: struck down the Virginia Military Institute’s 150 year old policy of all-male admissions on the grounds the policy violated the Equal Protection Clause.

This is merely a small sample of the fun the United States Supreme Court has had in striking down state laws not to the personal liking of the respective judges. What do these cases have to do with protecting the fundamental rights of blacks that were encompassed by the Privileges or Immunities Clause? Absolutely nothing. The Supreme Court makes up the law as it goes. Irrespective of whether the outcome of particular cases are deemed to be “good” or “bad,” this arbitrary power wielded by the federal courts, and the Supreme Court in particular, is the very definition of judicial tyranny.

United States Constitution – Fourteenth Amendment – Equal Protection Clause

No state shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws.