Equal Protection of the Laws

views updated


The ancient political ideal of equality did not find explicit recognition in the text of the Constitution until the fourteenth amendment was ratified in 1868. Yet equality was an American ideal from the earliest colonial times. There was irony in the expression of the ideal in the declaration of independence; the newly independent states generally limited voting to white male property owners, and thomas jefferson, the Declaration's author, was the troubled owner of slaves. Even so, one feature of white American society that set it apart from Europe was an egalitarian climate for social relations. The Constitution's ban on titles of nobility symbolized the nation's determination to leave behind the old world's privileges of monarchy and aristocracy.

Jefferson, who believed in an aristocracy of "virtue and talents," understood that equality of opportunity was consistent with wide disparities among individuals' wealth and power. The equality he envisioned was, above all, equality before the law. The principle of universal laws, equally applicable to all citizens, itself provided a foundation for a market economy whose competitive struggles would lead to further inequalities. An equality that was formal, or legal, thus would undermine the "equality of condition" that attracted some of Jefferson's contemporaries. Yet formal equality was something that mattered greatly in the nation's first decades, and it matters greatly today. When Europeans remark, as they still do, on America's relatively high degree of equality, they are referring not to equality of wealth or political power but to equality of social status. With pardonable literary exaggeration, Simone de Beauvoir said it this way: "the rich American has no grandeur; the poor man no servility; human relations in daily life are on a footing of equality.…"

The Fourteenth Amendment's wording emphasizes legal equality. A state is forbidden to "deny to any person within its jurisdiction the equal protection of the laws." On its face this language seems to demand no more than even-handed enforcement of laws as they are written. Such a reading, however, would drain all life from the guarantee of equal protection. On this view even a law barring blue-eyed persons from state employment would pass constitutional muster if the state applied it equally, without discrimination, to all applicants, refusing jobs only to those who were blue-eyed. No one has ever seriously argued for so restricted a scope for the equal protection clause. The Supreme Court casually dismissed the idea with a passing comment in yick wo v. hopkins (1886): "the equal protection of the laws is a pledge of the protection of equal laws."

At the other extreme of silliness, the Yick Wo statement might be taken literally, interpreting the equal protection clause to forbid the enforcement of any law that imposed any inequality. As Joseph Tussman and jacobus ten broek showed nearly forty years ago, so sweeping a reading would convert the clause into a constitutional prohibition on legislation itself. All laws draw lines of classification, applying their rules only to some people (or some transactions or phenomena) and not to others. Furthermore, the very existence of law—that is, of governmental regulation of human behavior—implies inequality, for some individuals must evaluate the behavior of others and enforce the state's norms by imposing sanctions on the recalcitrant. In Ralf Dahrendorf's biting formulation, "all men are equal before the law but they are no longer equal after it." Given the diverse characteristics of humans, the achievement of equality as to one aspect of life necessarily implies inequalities as to other aspects. And if it were possible to construct a society characterized by total, uncompromising equality, no one would want to live in that society.

Then what kinds of inequality are prohibited by the equal protection clause? The abstraction, equality, cannot resolve cases; the question always remains, equality as to what? To give meaning to the equal protection clause requires identification of the substantive values that are its central concern. The inquiry begins in the history leading to the adoption of the Fourteenth Amendment, but it does not end there. To understand the substantive content of the equal protection clause, we must consider not only what it meant to its framers, but also what it has come to mean to succeeding generations of judges and other citizens.

Just what role the framers had in mind for the equal protection clause remains unclear; the amendment's sketchy "legislative history" has been given widely divergent interpretations. All the interpreters agree, however, that the framers' immediate objective was to provide an unshakable constitutional foundation for the civil rights act of 1866. That act had been passed over the veto of President andrew johnson, who had asserted that it exceeded the powers of Congress.

The 1866 act had declared the citizenship of all persons born in the United States and subject to its jurisdiction. This declaration, later echoed in the text of the Fourteenth Amendment, had been designed to "overrule" the assertion by Chief Justice roger b. taney in his opinion for the Supreme Court in dred scott v. sandford (1857) that black persons were incapable of being citizens. Taney had said that blacks—not just slaves but any blacks—were incapable of citizenship, because blacks had not been members of "the People of the United States" identified in the Constitution's preamble as the body who adopted that document. Blacks has been excluded from membership in the national community, according to Taney, because they were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority.…" Discriminatory state legislation in force when the Constitution was adopted, Taney said, negated the conclusion that the states "regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; … and upon whom they had impressed such deep and enduring marks of inferiority and degradation.…"

This dubious reading of history is beside the point; Dred Scott 's relevance to our inquiry is that Taney's assumptions about racial inferiority and restricted citizenship were just what the drafters of the 1866 act sought to destroy. There was to be no "dominant race" and no "subordinate and inferior class of beings," but only citizens. Indeed the act's conferral of various civil rights was aimed at abolishing a new system of serfdom designed to replace slavery in the southern states. That system rested on the black codes, laws methodically imposing legal disabilities on blacks for the purpose of maintaining them in a state of dependency and inferiority.

The 1866 act, after its declaration of citizenship, provided that "such citizens, of every race and color [including former slaves], shall have the same right [to contract and sue in court and deal with property, etc.] as is enjoyed by white citizens.…" The "civil rights" thus guaranteed were seen as the equal rights of citizens. When President Johnson vetoed the bill, he similarly linked the ideas of citizenship and equality, and argued that the thirteenth amendment was an insufficient basis for congressional power. Congress overrode Johnson's veto, but from the time of the veto forward, a major purpose of the promoters of the Fourteenth Amendment, then under consideration in Congress, was to secure the constitutional foundations of the 1866 act.

The amendment, like the act, begins with a declaration of citizenship. In the same first section, the amendment goes on to forbid a state to "abridge the privileges or immunities of citizens of the United States," to "deprive any person of life, liberty, or property, without due process of law, " or to deny a person "the equal protection of the laws." No serious effort was made during the debates on the amendment to identify separate functions for the three clauses that followed the declaration of citizenship. The section as a whole was taken to guarantee the equal enjoyment of the rights of citizens.

Beyond those specific goals, nothing in the consensus of the Fourteenth Amendment's framers would have caused anyone to anticipate what the Supreme Court made of the amendment in the latter half of the twentieth century. Yet the Fourteenth Amendment was not written in the language of specific rights, such as the right to contract or buy or sell property, but was deliberately cast in the most general terms. The broad language of the amendment strongly suggests that its framers were proposing to write into the Constitution not a "laundry list" of specific civil rights but a principle of equal citizenship.

To be a citizen is to enjoy the dignity of membership in the society, to be respected as a person who "belongs." The principle of equal citizenship presumptively forbids the organized society to treat an individual either as a member of an inferior or dependent caste or as a nonparticipant. As Taney recognized in his Dred Scott opinion, the stigma of caste is inconsistent with equal citizenship, which demands respect for each individual's humanity. Further, a citizen is a participant in society, a member of a moral community who must be taken into account when community decisions are made. Citizenship also implies obligations to one's fellow citizens. The values of participation and responsibility contribute to the primary citizenship value of respect, but they are also independently significant as aspects of citizenship.

For the first eight decades of the Fourteenth Amendment's existence, its interpretation by the Supreme Court was largely a betrayal of the constitutional ideal of equal citizenship. First by inventing the state action limitation on the Fourteenth Amendment in the civil rights cases (1883), and then by giving racial segregation the stamp of constitutional validity in the separate but equal decision of plessy v. ferguson (1896), the Supreme Court delivered virtually the entire subject of race relations back into the hands of the white South. The equal citizenship principle was left to be articulated in dissenting opinions. Notable among those dissents were the opinions of Justice joseph p. bradley in the slaughterhouse cases (1873) and of Justice john marshall harlan in the Civil Rights Cases and Plessy v. Ferguson. The latter dissent included a passage that is now famous: "In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." For half a century, those words expressed not a reality but a hope.

Outside the field of racial discrimination, the equal protection clause had little force even during the period when the due process clause of the Fourteenth Amendment was in active use as a defense against various forms of economic regulation. By the 1920s, Justice oliver wendell holmes could say in buck v. bell (1927), with accuracy if not with compassion, that the equal protection clause was the "usual last resort of constitutional arguments."

Even during the years when Holmes's "last resort" epithet summarized equal protection jurisprudence, the NAACP was pinning its hopes for racial justice on the federal judiciary, and was winning some victories. The Supreme Court had struck down literacy tests for voting that contained grandfather clauses exempting most white voters, in guinn v. united states (1915) and Lane v. Wilson (1939); the Court had begun the process of holding "white primaries" unconstitutional; and it had invalidated racial zoning in buchanan v. warley (1917). And after the nation had emerged from the Great Depression and World War II, the judicial climate was distinctly more hospitable to equal protection claims.

The Depression had brought to dominance a new political majority, committed to active governmental intervention in economic affairs for the purpose of achieving full employment and major improvements in wages and the conditions of labor. The judiciary's main contribution to those egalitarian goals was to free the legislative process from the close judicial supervision of economic regulation that had attended the flowering of substantive due process doctrines in the recent past. The war not only ended the Depression; it was a watershed in race relations. The migration of blacks from the rural South to northern and western cities, which had slowed during the Depression, dramatically accelerated, as wartime industry offered jobs that black workers had previously filled only rarely. Urban blacks were soon seen as a potent national political force. By the end of the war, the Army had begun the process of racial integration. Wartime ideology, with its scorn for Nazi racism, had lasting effects on the public mind. Even as the Supreme Court was upholding severe—and racist—wartime restrictions in the japanese american cases (1943–1944), it reflected a new national state of mind in its celebrated obiter dictum in korematsu v. united states (1944): "All legal restrictions which curtail the civil rights of a single racial group are immediately suspect.… [C]ourts must subject them to the most rigid scrutiny."

In the immediate postwar years the Supreme Court held unconstitutional the judicial enforcement of restrictive covenants in shelley v. kraemer (1948), and it even ruled that the equal protection clause forbade some forms of segregation in state universities. (See sweatt v. painter, 1950.) The expected return to economic depression did not materialize. Instead, the country entered a period of unprecedented economic expansion. Good times are the most propitious for egalitarian public policies; it is relatively easy for "haves" to share with "have-nots" when they see their own conditions as steadily improving. The time was ripe, in the 1950s, for important successes in the movement for racial equality.

On the national scene, however, the political branches of government remained disinclined to act. One-party politics in the South had given disproportionate influence in the Congress to Southerners whose seniority gave them chairs of major committees. With President dwight d. eisenhower reluctant to intervene, the prospects for effective civil rights legislation seemed dim. Thus was the stage furnished when Eisenhower appointed earl warren to the Chief Justiceship in 1953.

In Warren's first term the Court decided brown v. board of education (1954)—still the leading authoritative affirmation that the Constitution forbids a system of caste—and in so doing began what philip kurland has called an "egalitarian revolution" in constitutional law. Brown was a major event in modern American history. Race relations in America would never again be what they were on the eve of the decision. The political movement for racial equality took on new vitality, and other egalitarian movements drew encouragement from that example. The constitutional law of equal protection gained powerful momentum, and the doctrinal effects went well beyond the subject of racial equality. If Brown itself represented judicial activism, it was no more than a shadow of what was to come. The equal protection clause became the cutting edge of the warren court's active intervention into realms that previously had been left to legislative choice.

Two doctrinal techniques served these egalitarian ends. First, the Court heightened the standard of review used to test the constitutionality of certain laws, insisting on strict scrutiny by the courts of legislation that employed a suspect classification or discriminated against the exercise of a fundamental interest. Second, the Court relaxed the "state action" limitation on the Fourteenth Amendment, bringing new forms of private conduct under the amendment's reach. Although the burger court later revitalized the "state action" limitation and slowed the advance of equal protection into new doctrinal territory, it made its own contributions to the development of the principle of equal citizenship.

Once the Court had firmly fastened the "suspect classification" label to racial discrimination, other forms of discrimination were attacked in the same terms. Some Justices have refused to find any legislative classification other than race to be constitutionally disfavored, but most of them have been receptive to arguments that at least some nonracial discriminations deserve heightened scrutiny. Thus, while only discrimination against aliens has been assimilated to the "suspect classifications" category—and even that assimilation is a sometime thing—the Court has announced clearly that judicial scrutiny should be heightened in some significant degree for sex discrimination or legislative classifications based on illegitimacy. Not only in these opinions but also in opinions refusing to apply similar reasoning to other forms of discrimination, the Court has developed a consensus on two sets of factors that are relevant in determining a classification's degree of "suspectness" or disfavor, and thus the level of justification which courts should demand for it.

The first set of factors emphasizes the equal citizenship value of respect; these factors reflect the judiciary's solicitude for the victims of stigma. A classification on the basis of a trait that is immutable and highly visible—such as race or sex—promotes stereotyping, the automatic assignment of an individual to a general category, often implying inferiority. The second set of factors, emphasizing the equal citizenship value of participation, focuses on the historic disadvantages (especially political disadvantages) of discrete and insular minorities. Both the phrase and the idea antedate Warren Court activism; they come from Justice harlan fiske stone's opinion for the Court in united states v. carolene products co. (1938). Legislation that burdens a group likely to be neglected by the legislature is a natural candidate for special judicial scrutiny.

The equal citizenship themes of respect, participation, and responsibility also informed the Warren Court's decisions demanding close examination of the justifications for legislative discrimination against the exercise of "fundamental interests." Those decisions, in theory, might have been rested on grounds of substantive due process rather than equal protection. In fact, the Burger Court, which refused to recognize any new "fundamental" interests in equal protection doctrine, employed similar reasoning under the heading of due process, with corresponding attention to the values of equal citizenship. (See abortion and the constitution; family and the constitution; right of privacy.) The equal protection cases, however, identify only three clusters of interests as "fundamental": voting rights and related interests in equal access to the electoral process; certain rights of access to the courts (which have come to be explained more recently on due process grounds); and rights concerning marriage, procreation, and family relations. (See freedom of intimate association.)

Voting, of course, is one of the core responsibilities of citizenship. Perhaps more important, it is the citizen's preeminent symbol of participation as a valued member of the community. Access to the courts, like voting, is instrumentally valuable as a way to protect other interests. But—also like voting—the chance to be heard is an important citizenship symbol. To be listened to, to be treated as a person and not an object of administration, is to be afforded the dignity owed to a citizen. Finally, the marriage and family cases similarly implicate the citizenship values of respect, responsibility, and participation. Marriage and parenthood do not merely define one's legal obligations; they define one's status and social role and self-concept. For the state to deny a person the right and responsibility of choice about such matters is to take away the presumptive right to be treated as a person, one of equal worth among citizens. None of these "fundamental" interests is entirely immune from state interference; what the principle of equal citizenship requires is that government offer weighty justification before denying their equal enjoyment.

In retrospect the whole apparatus of differential standards of review can be seen as judicial interest-balancing, thinly disguised: the more important the interest in equality, the more justification was required for its invasion by the government. Perhaps the Warren Court's majority chose to clothe its decisions in a "judicial"-sounding system of categories because the Justices were sensitive to the charge that they were writing their own policy preferences into the equal protection clause, and not just "interpreting" it. As a consequence, the Court extended the reach of equal protection without ever explicitly articulating the substantive content of the equal protection clause.

The Warren Court, in its final years, was well on the way to effective abandonment of the "state action" limitation on the Fourteenth Amendment, finding "significant state involvement" in all manner of private racial discriminations that denied their victims full participation in the public life of the community. Once Congress passed the civil rights act of 1964, however, it became unnecessary for the Court to complete its dismantling job; now there was a federal statutory right of access to public accommodations such as hotels, restaurants, and theaters. When the Court in jones v. alfred h. mayer co. (1968) discovered the Thirteenth Amendment as a source of congressional power to forbid most other private racial discrimination, the chief practical motivation for doing away with the "state action" doctrine was removed. In later years, a different majority of Justices has gone far to restore the "state action" limitation to its former status but at the same time it has both reaffirmed the power of Congress to stamp out private racial discrimination and promoted that purpose with an expansive interpretation of existing civil rights acts.

The right to participate in the community's public life—even those portions of public life that are owned and managed by private persons—is an essential ingredient of effective citizenship, part of what it means to be a respected member of society. The "state action" limitation, when the Supreme Court invented it, insulated the "private" choices of the owners of public accommodations and other commercial businesses not only from the direct reach of the Fourteenth Amendment's guarantee of equal protection but also from congressional vindication of the rights of equal citizenship. Although "state action" remains an impediment to the application of the equal protection clause to some private conduct, Congress can protect, and has protected, the most important claims to participation by all citizens in society's public life.

To say that the principle of equal citizenship is the substantive core of the equal protection clause, and that the Supreme Court's recent equal protection jurisprudence has centered on the values of equal citizenship, is not to decide particular cases. Equal citizenship is not a decisional machine but a principle that informs judgment by reference to certain substantive values. Like other constitutional principles, it is inescapably open-ended. The Warren Court's expansion of the content of equal protection doctrine was regularly greeted with the criticism that the Court had not specified exactly how far its egalitarian principles would reach. The critics did no more than echo what Jeremy Bentham had said more than a century earlier: the abstraction, equality, is insatiable; where would it all end?

This "stopping-place" problem is implicit in any constitutional guarantee of equality. Most obviously, it lies at the center of the question of affirmative governmental obligations to reduce inequality. In a few decisions over the past three decades the Supreme Court has imposed on government the duty to compensate for the inability of indigents to pay various costs or fees required for effective access to the courts. The Burger Court's consciousness of the stopping-place problem produced two types of response. Some claims of access, although accepted, were explained as resting on rights to procedural fairness, and thus on due process rather than equal protection grounds. (See boddie v. connecticut.) Other access claims were rejected, halting further extension of the demands of equal protection. (See ross v. moffitt.) Yet the Court has not been willing to put an end to the notion that some inequalities, although not caused directly by the state, are constitutionally intolerable, requiring governmental action to relieve their victims from some of their consequences.

Similarly, consciousness of the stopping-place problem has influenced the Court's definition of what constitutes a legislative discrimination based on race, or gender, or, presumably, any other disfavored classification. After flirting in some school segregation cases with a view that would equate de facto with de jure segregation, the Court declared in the employment discrimination case of washington v. davis (1976) that it was not enough, in making a claim of racial discrimination, to show that legislation had a racially discriminatory impact. To succeed, such a claim must be based on a showing of official discriminatory purpose. (See legislation.) The "impact" principle, said the Court, "would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." In other words, where would it all end?

What is needed, in dealing with the stopping-place problem as with any other aspect of equal protection interest-balancing, is the guidance that can be found in the Fourteenth Amendment's substantive values. Some inequalities will invade the core values of equal citizenship, and others will touch them hardly at all. The level of justification required for governmental action—or failure to act—will vary according to the magnitude of that invasion. Some economic inequalities may be so severe as to impose a stigma of caste, but most do not. Part of our tradition of responsible citizenship, after all, is to provide for oneself and one's family. The principle of equal citizenship is not a charter for economic leveling but a presumptive guarantee against those inequalities that dehumanize or seriously impair one's ability to participate as a member of society. To say that such determinations turn on questions of degree is merely to acknowledge that no constitutional principle is a substitute for judicial judgment.

Since the late 1960s a number of governmental and private bodies have voluntarily taken steps to compensate for inequalities that are the legacy of past societal discrimination, and generally to integrate various institutions by race and by gender. These affirmative action programs, sometimes in the form of racial or gender-based quotas for employment or housing or admission to higher education, do not merely equalize. Every equality begets another inequality. Even absent a quota, when a person's race becomes a relevant qualification for a job, all other relevant factors are diminished in weight. To put the matter more concretely, an individual can lose the competition for the job on the basis of his or her race. If affirmative action is constitutionally justified—and the Supreme Court has largely validated it—the reasons lie not in any lack of sympathy for such arguments, but in the weight of countervailing considerations supporting the programs. The Justices' various opinions upholding affirmative action have mainly sounded the theme of remedying past discrimination, but other arguments emphasize the urgency of integrating American institutions in the present generation.

The debate over affirmative action has touched a more general issue: the appropriate role of groups in equal protection analysis. In one view, group membership is simply irrelevant. The text of the equal protection clause provides its guarantees to "any person," and much of our constitutional tradition is individualistic. Yet, inescapably, a claim to equality is a claim made on behalf of a group. If every law draws some line of classification, then it is also true that every individual is potentially classifiable according to an enormous variety of characteristics. Legislative classification implies a selection of certain attributes as the relevant ones—the "merits" that justify conferring a benefit (or "demerits" that justify a burden). Once such a classification is written into law, any individual is classified either with the group of persons who possess the "merits" (or "demerits") or with the group of those who do not. To complain against a classification scheme is not merely to say "I am wronged," but to say "We—the whole group of individuals disadvantaged—are wronged." Indeed, any claim based on a rule of law is intelligible only as a demand to be treated the same as other members of a group, that is, all others who share the relevant "individual" attributes specified by the rule.

The origins of the Fourteenth Amendment strongly suggest that a group, defined by race just as the Dred Scott opinion had defined it, was intended to be the amendment's chief beneficiary. If today the equal protection clause prohibits other forms of inequality, there is nothing incongruous about viewing that development in one perspective as the recognition of the claims of groups of people: women, aliens, illegitimate children, homosexuals, the handicapped. When equal citizenship is denied, the denial typically takes a form that affects not merely isolated individuals but classes of people.

The equal protection clause limits only the states; nothing in the constitutional text expressly imposes an analogous limit on the federal government. Yet since bolling v. sharpe (1954) the Supreme Court has consistently interpreted the Fifth Amendment's due process clause to guarantee equal protection against federal denial. This interpretation has roots in the original Constitution's assumption that the new national government would have a direct relationship with individuals. The idea of national citizenship was current long before the Civil Rights Act of 1866. And that citizenship, as Justice Bradley argued in his dissent in the Slaughterhouse Cases, implies some measure of equality before the law. Bolling, a companion case to Brown v. Board of Education, presented a challenge to school segregation in the District of Columbia. Brown held the segregation of state schools unconstitutional, and Chief Justice Warren said it would be "unthinkable" if a similar principle were not applied to the national government. After the Fourteenth Amendment's reaffirmation of national citizenship, such a result would, indeed, have been unthinkable.

The Warren Court's expansion of constitutional guarantees of equality necessarily implied an expansion of the powers of the national government. The Civil War amendments were reinterpreted to give Congress sweeping powers to reach virtually all racial discriminations, public and private. The Fourteenth Amendment's equal protection clause became the basis for intensified intervention by the federal courts into areas previously governed by local law and custom, as a new body of uniform national law replaced local autonomy. As the "state action" limitation was relaxed, the Constitution brought the commands of law to areas previously regulated by private institutional decision. In alexander bickel's phrase, the Warren Court's main themes were "egalitarian, legalitarian, and centralizing."

The desegregation of places of public accommodations in the South is an instructive example. The Supreme Court first held unconstitutional all forms of state-sponsored segregation, including segregation of public beaches, parks, golf courses, and restaurants. Then, cautiously, it began to apply the same reasoning to some privately owned public accommodations, finding "state action" in the most tenuous connections between public policy and the private decision to segregate. Finally, in heart of atlanta motel co. v. united states (1964) the Court moved swiftly to validate the Civil Rights Act of 1964, which forbade segregation in most public accommodations that mattered. In all these actions the Court promoted the extension of a body of uniform national law to replace the local laws and customs that had long governed southern communities, with an earlier Supreme Court's blessing.

These changes in the law governing racial discrimination in public accommodations were, in one perspective, a repetition of a course of events that had been common in the Western world since the seventeenth century. An older system, basing a person's legal rights on his or her status in a hierarchical structure, came to be replaced by a newer law that applied impersonally to everyone. The abolition of slavery, the 1866 Civil Rights Act, the Civil War amendments—all had been earlier episodes in this same historical line. And the law that liberated individuals from domination based on race, like the law that previously had broken feudal hierarchies and the power of the guilds, was the law of the centralized state. If one were asked to compress three centuries of Western political history into three words, the words might be: "egalitarian, legalitarian, and centralizing."

Justice robert h. jackson, concurring in edwards v. california (1941), remarked that the Fourteenth Amendment's privileges and immunities clause was aimed at making United States citizenship "the dominant and paramount allegiance among us." Whatever the historical warrant for that assertion, it reflects today's social fact. We think of ourselves primarily as citizens of the nation, and only secondarily as citizens of the several states. The Constitution itself has become our pre-eminent symbol of national community, and the judiciary's modern contributions to our sense of community have centered on the principle of equal citizenship.

It is hard to overstate the importance of the ideal of equality as a legitimizing force in American history. For the social compact theorists of the eighteenth century whose thinking was well-known to the Framers of the original Constitution, some measure of equality before the law was implicit in the idea of citizenship. daniel webster, speaking of "the law of the land, " agreed: "The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society." By Webster's time, support for the principle of equality of opportunity could be found even among the most comfortable Americans, who saw in that principle a way to justify their advantages. More generally, the egalitarian spirit that has promoted a national consciousness has also lent legitimacy to government. There has been just enough truth in the belief that "anyone can grow up to be President" to provide a critical measure of the diffuse loyalty that is an essential ingredient of nationhood.

Never in our history has it been true that anyone might aspire to the presidency. Slavery and racial discrimination are only the most obvious and uglier counterexamples; not until our own time have women's aspirations to such high position become realistic. Yet the guarantee of equal protection of the laws, even during the long decades when lawyers deemed it a constitutional trifle, stood as a statement of an important American ideal. Much of the growth in our constitutional law has resulted when the downtrodden have called the rest of us to account, asking whether we intend to live up to the principles we profess. Vindication of the constitutional promise of equal citizenship did not take its rightful place on our judicial agenda for an unconscionably long time, and it remains far from complete. What is most remarkable, however, is the nourishment that the promise—the promise alone—has provided for a national community.

Kanneth L. Karst


Bell, Derrick A., Jr. 1980 Race, Racism, and American Law, 2nd ed. Boston: Little, Brown.

Bickel, Alexander M. 1970 The Supreme Court and the Idea of Progress. New York: Harper & Row.

Black, Charles L., Jr. 1969 Structure and Relationship in Constitutional Law. Pages 51–66. Baton Rouge: Louisiana State University Press.

Ely, John Hart 1980 Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press.

Fiss, Owen M. 1976 Groups and the Equal Protection Clause. Philosophy and Public Affairs 5:107–177.

Karst, Kenneth L. 1977 The Supreme Court, 1976 Term—Foreword: Equal Citizenship under the Fourteenth Amendment. Harvard Law Review 91:1–68.

Kinoy, Arthur 1967 The Constitutional Right of Negro Freedom. Rutgers Law Review 21:387–441.

Michelman, Frank I. 1969 The Supreme Court, 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment. Harvard Law Review 83:7–59.

Pole, J.R. 1978 The Pursuit of Equality in American History. Berkeley: University of California Press.

Rae, Douglas 1981 Equalities. Cambridge, Mass.: Harvard University Press.

Tocqueville, Alexis De 1945 Democracy in America, P. Bradley, ed., 2 vols. New York: Vintage Books.

Tussman, Joseph and Ten Broek, Jacobus 1949 The Equal Protection of the Laws. California Law Review 37:341–381.

Westen, Peter 1982 The Empty Idea of Equality. Harvard Law Review 95:537–596.