Equal Protection and Reconstruction Amendments

Constitutional History and Slavery

  • The original United States Constitution omitted express mention of equality while tolerating slavery through specific clauses:

    • Three-Fifths Clause (Article I, Section 2): "other Persons"

    • Slave Trade Clause (Article I, Section 9): "migration or importation of such persons"

    • Fugitive Slave Clause (Article IV, Section 2): "person held to service or labor"

  • Key legal developments prior to the Civil War:

    • Missouri Compromise (1820): Forbade slavery in territories north of 36˚30' (except Missouri).

    • Kansas-Nebraska Act of 1854: Repealed the Missouri Compromise.

    • Dred Scott v. Sandford (1857): Ruled that Congress lacked authority to restrict slavery in territories or grant citizenship to African Americans.

  • Reconstruction Amendments and early legislation:

    • Thirteenth Amendment: Ratified following Lee's surrender at Appomattox; officially abolished slavery and directly applies to private actors.

    • Black Codes: Enacted by Southern legislatures to restrict African American labor and movement; prompted civil rights legislation and the Fourteenth Amendment (ratified 1868).

    • Fourteenth Amendment Section 1: Prohibits any State from denying "to any person within its jurisdiction the equal protection of the laws."

Segregation Jurisprudence: From Plessy to Brown

  • The Compromise of 1877 resolved the contested 1876 presidential election of Rutherford B. Hayes, led to the withdrawal of federal troops, and enabled Jim Crow segregation.

  • Plessy v. Ferguson (1896): Justice Henry Brown authored the opinion upholding railway segregation under the "separate-but-equal" doctrine.

  • Brown v. Board of Education (1954): Unanimously held that "[s]eparate educational facilities are inherently unequal."

  • Desegregation enforcement and boundaries:

    • Brown II (1955): Ordered desegregation "with all deliberate speed."

    • Green v. County School Bd. of New Kent County (1968): Required school boards to implement plans "that promises realistically to work now."

    • Milliken v. Bradley (1977) and Freeman v. Pitts (1992): Established that the Equal Protection Clause applies to state-mandated de jure segregation, but not de facto segregation resulting from private choices ("white flight").

Originalism and Due Process Equal Protection

  • Originalist challenges regarding racial desegregation:

    • The Congress that proposed and states that ratified the Fourteenth Amendment simultaneously enacted laws requiring segregated schools.

    • Bolling v. Sharpe (1954): Invalidated public school segregation in the District of Columbia, establishing an equal protection component within the Fifth Amendment Due Process Clause applicable to the federal government.

  • Confirmation controversy: Robert Bork's 1987 Supreme Court confirmation hearings underscored the difficulty originalists face in reconciling traditional originalism with Brown and Bolling.

Theories of Equal Protection: Anti-Subordination vs. Color-Blindness

  • Doctrinal roots trace to Justice John Marshall Harlan's dissent in Plessy v. Ferguson:

    • Anti-subordination principle: Derived from "There is no caste here," interpreting equal protection as forbidding class or caste subordination.

    • Color-blindness principle: Derived from "Our constitution is color-blind, and neither knows nor tolerates classes among citizens," interpreting equal protection as prohibiting race-conscious government decisions.

  • These competing frameworks structure modern constitutional disputes over race-based affirmative action in education and employment.