Equal Protection

[Page p172]The notion of equality of all citizens, or at least those persons eligible to participate in a democracy, predates the American experiment in self-government. Discussing how to preserve a constitution, Aristotle, the Greek philosopher who lived in the fourth century b.c.e., argued that rulers “should never wrong the ambitious in a matter of honour, or the common people in a matter of money; and they should treat one another and their fellow-citizens in a spirit of equality. The equality which the friends of democracy seek to establish for the multitude is not only just but likewise expedient among equals.”

Both the social compact theory of democracy—that there is a tacit agreement between the rulers and the ruled that legitimizes democratic governments—and the notion that sovereignty in a democracy is vested in the citizens lead to the logical conclusion that all citizens of a democracy are equal with respect to their constitution and the laws enacted pursuant to it. In looking to the intent of the framers of the Constitution for guidance in matters concerning equality, it must be remembered that in 1789 women and slaves (See Slavery) were denied the rights of citizenship granted to adult white males. Although no aristocracy or class distinctions existed as in England (Article I, section 9, prohibited titles of nobility), equality was recognized to exist only among white adult male owners of property.

The first constitutional effort to expand equality was the Thirteenth Amendment (1865), prohibiting slavery. The Civil Rights Act of 1866 guaranteed that all citizens, “of every race and color [including former slaves but not women], shall have the same right … as is enjoyed by white citizens….” Two years later the Fourteenth Amendment (1868) was approved to ensure the act's constitutionality, providing in part: “No State shall make or enforce any law which shall abridge the privileges and 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 constitutions of a number of other countries, including Germany (1949) and Colombia (1991), guarantee their citizens similar equality before the law or equal protection of the law; many also include a list of types of discrimination—for example, sex, race, and national origin—that may not be used to deny equal protection. How all these equal protection guarantees are applied raises a number of questions: What constitutes equal treatment? When is equal treatment unjust rather than just? And what government interests can override equal treatment?

“Separate but Equal”