Equal Protection

Historical Perspective

The 14th Amendment was ratified in 1868, just 3 years after the 13th Amendment, which abolished slavery and involuntary servitude, and 2 years before the 15th Amendment, which prohibited denying citizens the right to vote “on account of race, color, or previous condition of servitude.” This trio of post-Civil War amendments served many purposes, but a central focus was protecting newly freed slaves, particularly in those States that had constituted the Confederacy.

So on its face, the 14th Amendment's equal protection clause seemed intended to provide recently freed slaves the same protection under the laws as white citizens. Surprisingly, the earliest litigation involving the 14th Amendment had little to do with race. Today, litigation under the equal protection clause involves questions about gender, age, disability, and sexual orientation, among other classifications. Nonetheless, examining the application of the equal protection clause to race is illustrative.

In 1877, when federal troops withdrew from the South, abruptly ending a period of Reconstruction, many Southern and Border States enacted regulations known as Jim Crow laws (which prohibited blacks from using the same public facilities as whites) and Black Codes (which impinged on blacks' civil rights and civil liberties). In 1896, one such Jim Crow law was the focus of a notorious U.S. Supreme Court case known as Plessy v. Ferguson. This case gave rise both to the doctrine known as “separate but equal” and to a contradictory minority view that the Constitution was “color-blind.”

Using the equal protection clause of the 14th Amendment, Homer Plessy challenged a Louisiana law that mandated that railway coaches be segregated by race. State law required black customers to ride in separate, third-class passenger cars. Plessy, an “octoroon” (meaning he was one-eighth black), was arrested when he boarded the train with a first-class ticket usually reserved for white patrons. The Court upheld the law, finding that the equal protection clause did not extend to “equality in social arrangements” but rather protected only “equality of civil rights.”

In this reading of the equal protection clause, the notion of protection of the laws trumped the idea of equality of the laws. Justice Brown, writing for the majority, identified “the underlying fallacy” of Plessy's argument as based on an assumption that “separation of the two races stamps the colored race with a badge of inferiority.” The only dissenting justice, John Harlan, wrote, “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens” (emphasis added). Two decidedly conflicting views thus emerged. The majority permitted separate treatment by race if that treatment was equal; Harlan objected to the very notion of separate, where people were sorted by race.

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