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Encyclopedia > Equal Protection Clause
Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause.
Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause.

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states. Congressman John Bingham, downloaded from http://www. ... Congressman John Bingham, downloaded from http://www. ... John Bingham (1815–1900) was a Republican Congressman from Ohio, a Radical Republican, and the principal framer of the Fourteenth Amendment to the United States Constitution. ... This article is about the U.S. State. ... Amendment XIV in the National Archives The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments (known as the Reconstruction Amendments), first intended to secure rights for former slaves. ... Wikisource has original text related to this article: The United States Constitution The United States Constitution is the supreme law of the United States of America. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      A U.S. state is any one of the fifty subnational entities of... This article does not cite any references or sources. ... For other uses, see Law (disambiguation). ... The quotation All men are created equal (sometimes modified to All people are created equal) is arguably the best-known phrase in any of Americas political documents, as the idea it expresses is generally considered the foundation of American democracy. ...


More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state leaders, and governments, even including some rights that arguably were not protected from abridgement by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate; and the story of the Equal Protection Clause is the gradual explication of its meaning. This article is about the federal government of the United States. ...


One of the main limitations in the Equal Protection Clause is that it limits only the powers of government bodies, and not the private parties on whom it confers equal protection. This limitation has existed since 1883 and has not been overturned. However, since the 1960s, Congress has passed most civil rights legislation under its Commerce Clause power. Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, states that Congress has the exclusive authority to manage trade activities between the states and with foreign nations and Indian tribes. ...

Contents

Background

The words inscribed above the entrance to the U.S. Supreme Court are: "Equal justice under law"
The words inscribed above the entrance to the U.S. Supreme Court are: "Equal justice under law"

The Fourteenth Amendment was enacted in 1868, shortly after the Union victory in the American Civil War. Though the Thirteenth Amendment, which was proposed by Congress and ratified by the states in 1865, had abolished slavery, many ex-Confederate states adopted Black Codes following the war. Photo taken by uploader. ... Photo taken by uploader. ... The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... The front of the Supreme Court Building, including the West Pediment. ... Combatants United States of America (Union) Confederate States of America (Confederacy) Commanders Abraham Lincoln, Ulysses S. Grant Jefferson Davis, Robert E. Lee Strength 2,200,000 1,064,000 Casualties 110,000 killed in action, 360,000 total dead, 275,200 wounded 93,000 killed in action, 258,000 total... Amendment XIII in the National Archives The Thirteenth Amendment to the United States Constitution officially abolished, and continues to prohibit slavery and, with limited exceptions (those convicted of a crime), prohibits involuntary servitude. ... Article Five of the United States Constitution describes the process whereby the Constitution may be altered. ... This article is about the abolition of slavery. ... Slave redirects here. ... Motto Deo Vindice (Latin: Under God, Our Vindicator) Anthem (none official) God Save the South (unofficial) The Bonnie Blue Flag (unofficial) Dixie (unofficial)  States that seceded under CSA control  States and territories claimed by CSA without formal secession and/or control Capital Montgomery, Alabama (until May 29, 1861) Richmond, Virginia... The Black Codes were laws passed to restrict civil rights and civil liberties of African Americans, particularly former slaves. ...


These laws severely restricted the power of blacks to hold property and form legally enforceable contracts. They also created harsher criminal penalties for blacks than for whites.[1] This article or section does not cite any references or sources. ... A contract is a legally binding exchange of promises or agreement between parties that the law will enforce. ...


In response to the Black Codes, Congress enacted the Civil Rights Act of 1866, which provided that all those born in the United States were citizens of the United States (this provision was meant to overturn the Supreme Court's decision in Dred Scott v. Sandford), and required that "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."[2] Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment. The effort was led by the Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens. The most important among these, however, was Bingham, a Congressman from Ohio, who drafted the language of the Equal Protection Clause. The Civil Rights Act Of 1866 is a piece of United States legislation that gave further rights to the freed slaves after the end of the American Civil War. ... Holding States do not have the right to claim an individuals property that was fairly theirs in another state. ... For other uses, see Race. ... Frémont (left), 1856 Republican parade banner The Radical Republicans were the remaining faction of American politicians within the Republican party during the American Civil War and Reconstruction following an 1864 exodus of pro-Lincoln Republicans into the creation of the National Union Party. ... John Bingham (1815–1900) was a Republican Congressman from Ohio, a Radical Republican, and the principal framer of the Fourteenth Amendment to the United States Constitution. ... For other persons named Charles Sumner, see Charles Sumner (disambiguation). ... Thaddeus Stevens (April 4, 1792 – August 11, 1868), was one of the most powerful members of the United States House of Representatives, representing the state of Pennsylvania. ... This article is about the U.S. State. ...


The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the … Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having seceded from the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated, to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.[3] The U.S. Southern states or the South, also known colloquially as Dixie, constitute a distinctive region covering a large portion of the United States, with its own unique heritage, historical perspective, customs, musical styles, and cuisine. ... A rump state is the remnant of a once-larger government, left with limited powers or authority after a disaster, invasion or military occupation. ...


By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing the same restrictions on the federal government. Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. ... In United States law, adopted from English Law, due process (more fully due process of law) is the principle that the government must respect all of a persons legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty... Bolling v. ...


Reconstruction-era interpretation and the Plessy decision

The Court that decided Plessy
The Court that decided Plessy

The first truly landmark equal protection decision by the Supreme Court was Strauder v. West Virginia (1880), soon after the end of Reconstruction. A black man, named Jeff Katz, convicted of murder by an all-white jury challenged a West Virginia statute excluding blacks from serving on juries. The Court asserted that the purpose of the Clause was from http://www. ... from http://www. ... Strauder v. ... For other uses, see Reconstruction (disambiguation). ... An empty jury box in an American courtroom For jury meaning makeshift, see jury rig. ... Official language(s) English Capital Charleston Largest city Charleston Largest metro area Charleston metro area Area  Ranked 41st  - Total 24,244 sq mi (62,809 km²)  - Width 130 miles (210 km)  - Length 240 miles (385 km)  - % water 0. ... The Statute of Grand Duchy of Lithuania A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ...

to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.

Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of [the defendant's] race."


The next important postwar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other places of public amusement." In its opinion, the Court promulgated what has since become known as the "State Action Doctrine," which limits the guarantees of the equal protection clause only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong," provided, of course, that the state's law saw it as a wrong. Justice John Marshall Harlan dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism." Holding The Equal Protection clause applies only to state action, not segregation by privately owned businesses. ... The Civil Rights Act of 1875 (18 Stat. ... A common carrier is an organization that transports a product or service using its facilities, or those of other carriers. ... Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States. ... This is about the pre-World-War-I US Supreme Court justice; for his grandson, the mid-20th-century holder of the same position, see John Marshall Harlan II. John Marshall Harlan (June 1, 1833 – October 14, 1911) was an American Supreme Court associate justice. ...


Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment," and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state.


A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins (1886).[4] He said: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." Thus, the Clause would not be limited to discrimination against African Americans, nor would it be limited to equal enforcement of existing laws. Holding Racially discriminatory application of a facially neutral statute violates the Equal Protection Clause of the Fourteenth Amendment. ...


In its most contentious post-war interpretation of the equal protection clause, Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana Jim Crow law that required the segregation of blacks and whites on railroads and mandated separate railway cars for members of the two races.[5] The Court, speaking through Justice Henry B. Brown, ruled that the equal protection clause had been intended to defend equality in civil rights, not equality in social arrangements. All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people." Plessy redirects here. ... This article is about the U.S. State. ... The term Jim Crow laws refers to a series of laws enacted mostly in the Southern United States in the later half of the 19th century that restricted most of the new privileges granted to African-Americans after the Civil War. ... Racial segregation characterised by separation of different races in daily life, such as eating in a restaurant, drinking from a water fountain, using a rest room, attending school, going to the movies, or in the rental or purchase of a home. ... railroads redirects here. ... Categories: People stubs | U.S. Supreme Court justices | U.S. District Court judges | American lawyers | 1836 births | 1913 deaths ... Civil rights or positive rights are those legal rights retained by citizens and protected by the government. ... In sociology a social rule refers to any social convention commonly adhered to in a society. ... It has been suggested that Convention (norm) be merged into this article or section. ... For other uses, see Tradition (disambiguation). ...


Justice Harlan again dissented. "Every one knows," he wrote,

that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.... [I]n 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. Caste systems are traditional, hereditary systems of social classification, that evolved due to the enormous diversity in India (where all three primary races met, not by forced slavery but by immigration). ...

Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."[6]


Since Brown v. Board of Education (1954), Justice Harlan's dissent in Plessy has been vindicated as a matter of legal doctrine, and the clause has been interpreted as imposing a general restraint on the government's power to discriminate against people based on their membership in certain classes, including those based on race and sex (see below). Holding Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal. ... Manifestations Slavery Racial profiling Lynching Hate speech Hate crime Genocide (examples) Ethnocide Ethnic cleansing Pogrom Race war Religious persecution Blood libel Paternalism Police brutality Movements Policies Discriminatory Race / Religion / Sex segregation Apartheid Redlining Internment Ethnocracy Anti-discriminatory Affirmative action in the United States Emancipation Civil rights Desegregation Integration Equal opportunity...


It was also in the post-Civil-War era that the Supreme Court first decided that corporations were "persons" within the meaning of the equal protection clause.[7] However, the legal concept of corporate personhood predates the Fourteenth Amendment.[8] In the late nineteenth and early twentieth centuries, the Clause was used to strike down numerous statutes applying to corporations. Since the New Deal, however, such invalidations have been rare.[9] Corporate personhood is a term used to describe the legal fiction used within United States law that a corporation, under the concept of legal entity, has a limited subset of the same constitutional rights as a human being. ...


Between Plessy and Brown

While the Plessy majority's interpretation of the clause stood until Brown, the holding of Brown was prefigured, to some extent, by several earlier cases.


The first of these was Missouri ex rel. Gaines v. Canada (1938), in which a black student at Missouri's all-black college sought admission to the law school at the all-white University of Missouri—there being no law school at the all-black college. Admission was denied him, and the Supreme Court, applying the separate-but-equal principle of Plessy, held that a State's offering a legal education to whites but not to blacks violated the Equal Protection Clause. Wikipedia does not yet have an article with this exact name. ... This article is about the U.S. state. ... This article is about the university in Columbia. ...


Smith v. Allwright (1944) and Shelley v. Kraemer (1948), though not dealing with education, indicated the Court's increased willingness to find racial discrimination illegal. Smith declared that the Democratic primary in Texas, in which voting was restricted to whites alone, was unconstitutional, partly on equal protection grounds. Shelley concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could: after all, the Supreme Court reasoned, courts were part of the state. Smith v. ... Holding The Fourteenth Amendment prohibits a state from enforcing restrictive covenants which would prohibit a person from owning or occupying property on the basis of race or color. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  Politics Portal      Further information: Politics of the United States#Organization of American political parties The Democratic... For other uses, see Primary. ... For other uses, see Texas (disambiguation). ...


More important, however, were the companion cases Sweatt v. Painter and McLaurin v. Oklahoma State Regents, both decided in 1950. In McLaurin, the University of Oklahoma had admitted McLaurin, an African-American, but had restricted his activities there: he had to sit apart from the rest of the students in the classrooms and library, and could eat in the cafeteria only at a designated table. A unanimous Court, through Chief Justice Fred M. Vinson, said that Oklahoma had deprived McLaurin of the equal protection of the laws: Sweatt v. ... McLaurin v. ... University of Oklahoma, abbreviated OU, is a coeducational public research university located in the U.S. state of Oklahoma. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Chief Justice of the United States is the head of the judicial... Frederick Moore Vinson (January 22, 1890 – September 8, 1953) served the United States in all three branches of government. ...

There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.

The present situation, Vinson said, was the former.


In Sweatt, the Court considered the constitutionality of Texas's state system of law schools, which educated blacks and whites at separate institutions. The Court (again through Chief Justice Vinson, and again with no dissenters) invalidated the school system—not because it separated students, but rather because the separate facilities were not equal. They lacked "substantial equality in the educational opportunities" offered to their students. // A law school is an institution where future lawyers obtain legal degrees. ...


All of these cases, including Brown, were litigated by the National Association for the Advancement of Colored People. It was Charles Hamilton Houston, a Harvard Law School graduate and a law professor at Howard University, who in the 1930s first began to challenge racial discrimination in the federal courts. Thurgood Marshall, a former student of Houston's and the future Solicitor General and Associate Justice of the Supreme Court, joined him. Both men were extraordinarily skilled appellate advocates, but part of their shrewdness lay in their careful choice of which cases to litigate—of which situations would be the best legal proving grounds for their cause.[10] The National Association for the Advancement of Colored People (NAACP, generally pronounced as EN Double AY SEE PEE) is one of the oldest and most influential civil rights organizations in the United States. ... Charles Hamilton Houston (September 3, 1895–April 22, 1950) was a black lawyer, Dean of Howard University Law School and NAACP Litigation Director who helped play a role in dismantling the Jim Crow laws and helped train future Supreme Court justice Thurgood Marshall. ... Harvard Law School (colloquially, Harvard Law or HLS) is one of the professional graduate schools of Harvard University. ... Howard University is a university located in Washington, D.C., USA. A historically black university, Howard was established in 1867 by congressional order and named for Oliver O. Howard. ... For people and institutions etc. ... The United States Solicitor General is the individual appointed to argue for the Government of the United States in front of the Supreme Court of the United States, when the government is party to a case. ... The Justices of the United States Supreme Court, other than the Chief Justice, are termed Associate Justices. ... It has been suggested that this article or section be merged into Appeal. ...


Brown and its consequences

When Earl Warren became Chief Justice in 1953, Brown had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional.[11] In that opinion, Warren wrote: For the swing saxophonist and occasional singer, see Earle Warren Earl Warren (March 19, 1891 – July 9, 1974) was a California district attorney of Alameda County, the 20th Attorney General of California, the 30th Governor of California, and the 14th Chief Justice of the United States (from 1953 to 1969). ... GOP redirects here. ...

To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.... We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

The Court then set the case for re-argument on the question of what the solution would be. In Brown II, decided the next year, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be so as well. Thus the court devolved authority to local school boards and to the trial courts that had originally heard the cases. (Brown was actually a consolidation of four different cases from four different states.) The trial courts and localities were told to desegregate with "all deliberate speed". Holding Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal. ... A board of education or a school board or school committee is the title of the board of directors of a school, local school district or higher administrative level. ... Map of the boundaries of the United States Courts of Appeals and United States District Courts The United States district courts are the general trial courts of the United States federal court system. ...


Partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance" in the South to the desegregation decision, integration did not begin in any significant way until the mid-1960s and then only to a small degree. In fact, much of the integration in the 1960s happened in response not to Brown but to the Civil Rights Act of 1964. The Supreme Court intervened a handful of times in the late 1950s and early 1960s, but its next major desegregation decision was Green v. School Board of New Kent County (1968), in which Justice William J. Brennan, writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. This was a significant act; freedom-of-choice plans had been very common responses to Brown. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks rarely attended white-identified schools. Massive Resistance was a policy declared by U.S. Senator Harry F. Byrd, Sr. ... Children at a parade in North College Hill, Ohio Manifestations Slavery Racial profiling Lynching Hate speech Hate crime Genocide (examples) Ethnocide Ethnic cleansing Pogrom Race war Religious persecution Blood libel Paternalism Police brutality Movements Policies Discriminatory Race / Religion / Sex segregation Apartheid Redlining Internment Ethnocracy Anti-discriminatory Emancipation Civil rights Desegregation... First page of the Civil Rights Act of 1964 The Civil Rights Act of 1964 (Pub. ... Holding New Kent Countys desegregation plan did not comply with the dictates of , 349 U.S. 294 (1955), and was therefore unconstitutional. ... William J. Brennan, official portrait, 1976. ...


In response to Green, many Southern districts replaced freedom-of-choice with geographically based schooling plans; but because residential segregation was widespread, this had little effect, either. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of Education approved busing as a remedy to segregation; three years later, though, in the case of Milliken v. Bradley (1974), it set aside a lower court order that had required the busing of students between districts, instead of merely within a district. Milliken basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the '50s and '60s.[12] American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, to Congressional action or to societal change, the percentage of black students attending school districts a majority of whose students were black decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.[13] Holding Busing students to promote integration is constitutional. ... Milliken v. ... School districts are a form of special-purpose district in the United States (amongst some other places) which serves to operate the local public primary and secondary schools. ...


There are, very broadly speaking, two ways to explain America's marked lack of success in school integration in the five decades since Brown. One way, sometimes voiced by political conservatives, argues that Brown's relative failure is due to the inherent limitations of law and the courts, which simply do not have the institutional competence to supervise the desegregation of whole school districts. Moreover, the federal government's, and especially the Supreme Court's, hubris actually provoked the resistance of locals, since education in the United States is traditionally a matter for local control. The other way to explain what has happened since Brown often has political liberals as its proponents; it argues that the Court's decree in Brown II was insufficiently rigorous to force segregated localities into action, and that real success began only after the other two branches of the federal government got involved—the Executive Branch (under Kennedy and Johnson) by encouraging the Department of Justice to pursue judicial remedies against resistant school districts, and Congress by passing the Civil Rights Act of 1964 and the Civil Rights Act of 1968.[14] Liberals also point out that Richard Nixon's "southern strategy" was premised on a tacit support of segregation that continued when Nixon came to office, so that after 1968 the Executive was no longer behind the Court's constitutional commitments.[15] Moreover, some, such as Professor Erwin Chemerinsky, argue that courts may have had sufficient ability to ensure widespread integration but simply were not allowed enough time to perform this role, since Milliken v. Bradley, in 1974—barely a decade since desegregation began in earnest in the South—severely curtained the thoroughgoing methods (e.g. busing) which might have achieved the goal of desegregation. American conservatism is a constellation of political ideologies within the United States under the blanket heading of conservative. ... American liberalism—that is, liberalism in the United States of America—is a broad political and philosophical mindset, favoring individual liberty, and opposing restrictions on liberty, whether they come from established religion, from government regulation, from the existing class structure, or from multi-national corporations. ... John Kennedy and JFK redirect here. ... Lyndon Baines Johnson ( August 27, 1908 – January 22, 1973), often referred to as LBJ, was an American politician. ... The Robert F. Kennedy Department of Justice Building in Washington, D.C. “Justice Department” redirects here. ... President Johnson signing the Civil Rights Act of 1968 On April 11, 1968, President Lyndon Johnson signed the Civil Rights Act of 1968 (also known as CRA 68), which was meant as a follow-up to the Civil Rights Act of 1964. ... Nixon redirects here. ... In American politics, the Southern strategy refers to the focus of the Republican party on winning U.S. Presidential elections by securing the electoral votes of the U.S. Southern states. ... Erwin Chemerinsky speaking at the William & Mary School of Law in September 2007. ...


Carolene Products and the various levels of Equal Protection scrutiny

Harlan Stone, author of Carolene Products
Harlan Stone, author of Carolene Products

Despite the undoubted importance of Brown, much of modern equal protection jurisprudence stems from footnote four of United States v. Carolene Products Co. (1938), a Commerce Clause and substantive due process case. In 1937, the Court (in what was called the "switch in time that saved nine") had loosened its rules for deciding whether Congress could regulate certain commercial activities. In discussing the new presumption of constitutionality that the Court would apply to economic legislation, Justice Harlan Stone wrote: public domain, from http://www. ... Footnote four is a famous footnote from a U.S. Supreme Court case, United States v. ... United States v. ... Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, states that Congress has the exclusive authority to manage trade activities between the states and with foreign nations and Indian tribes. ... In United States law, adopted from English Law, due process (more fully due process of law) is the principle that the government must respect all of a persons legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty... “The switch in time that saved nine” was the name given by the press to the apparent sudden shift by Justice Owen J. Roberts from the conservative wing of the Supreme Court (represented by the Four Horsemen) to the liberal wing (represented by Three Musketeers) in the case West Coast... Type Bicameral Houses Senate House of Representatives President of the Senate President pro tempore Dick Cheney, (R) since January 20, 2001 Robert C. Byrd, (D) since January 4, 2007 Speaker of the House Nancy Pelosi, (D) since January 4, 2007 Members 535 plus 4 Delegates and 1 Resident Commissioner Political... Legislation (or statutory law) is law which has been promulgated (or enacted) by a legislature or other governing body. ... Harlan Fiske Stone (October 11, 1872–April 22, 1946) was the dean of Columbia Law School, Attorney General of the United States, Associate Justice and later Chief Justice of the United States Supreme Court. ...

[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.[16]

Thus were born the "more searching" levels of scrutiny—"strict" and "intermediate"—with which the Court would examine legislation directed at racial minorities and women. Although the Court first articulated a "strict scrutiny" standard for laws based on race-based distinctions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944), the Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia. Intermediate scrutiny did not command the approbation of a majority of the Court until the 1976 case of Craig v. Boren. Holding --- Court membership Case opinions Laws applied --- Hirabayashi v. ... Holding The exclusion order leading to Japanese American Internment was constitutional. ... Holding The Court declared Virginias anti-miscegenation statute, the Racial Integrity Act of 1924, unconstitutional, thereby ending all race-based legal restriction on marriage in the United States. ... Craig v. ...


The Supreme Court has defined these levels of scrutiny in the following way:

  • Strict scrutiny (if the law categorizes on the basis of race or national origin): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
  • Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest. Note that in past decisions "sex" generally has meant gender.
  • Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.

Although in 1985 the court in City of Cleburne v. Cleburne Living Center, Inc. held mentally retarded persons were deemed to be subject to a "rational basis" test, in invalidating seemingly rational zoning laws and land use restrictions, many assert that the court introduced an "enhanced" rational basis test that required the state to show more than a facially valid law and instead to balance the community's needs against the needs of the disabled.[17] Strict scrutiny is the highest standard of judicial review used by courts in the United States. ... Intermediate scrutiny, in U.S. constitutional law, is the middle level of scrutiny applied by courts deciding constitutional issues through judicial review. ... Gender in common usage refers to the sexual distinction between male and female. ... Rational basis rest, in U.S. constitutional law, is the lowest level of scrutiny applied by courts deciding constitutional issues through judicial review. ... City of Cleburne v. ... Mental retardation (abbreviated as MR), is a term for a pattern of persistently slow learning of basic motor and language skills (milestones) during childhood, and a significantly below-normal intellectual capacity as an adult. ... The term disability, as it is applied to humans, refers to any condition that impedes the completion of daily tasks using traditional methods. ...


There is, arguably, a fourth level of scrutiny for equal protection cases. In United States v. Virginia Justice Ruth Bader Ginsburg eschewed the language of intermediate scrutiny for sex-based discrimination and instead demanded that litigants articulate an "exceedingly persuasive" argument to justify gender discrimination. Whether this was simply a restatement of the doctrine of intermediate scrutiny or whether it created a new level of scrutiny between the intermediate and strict standards is unclear. Holding State of Virginias exclusion of women from the Virginia Military Institute violated Equal Protection Clause of the Fourteenth Amendment. ... Ruth Joan Bader Ginsburg (born March 15, 1933, Brooklyn, New York) is an Associate Justice on the U.S. Supreme Court. ...


Discriminatory intent or disparate impact?

After Brown, questions still remained about the scope of the equal protection clause. Does the Clause outlaw public policies that cause racial disparities—for example, a public school examination that has not been established for racist reasons, but that more white students than black students pass? Or, on the other hand, does it only outlaw intentional bigotry?


The Supreme Court has answered that the equal protection clause itself does not forbid policies which lead to racial disparities, but that Congress may by legislation prohibit such policies.


Take, for example, Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion. Title VII applies both to private and to public employers. (While Congress applied Title VII to private employers using its interstate commerce power, it applied Title VII to public employers under its power to enforce the Fourteenth Amendment. Title VII's standards for public and private employers are the same.) The Supreme Court ruled in Griggs v. Duke Power Co. (1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII. In the years since Griggs, courts have defined "business necessity" as requiring the employer to prove that whatever is causing the racial disparity—be it a test, an educational requirement, or another hiring practice—has a demonstrable factual relationship to making the company more profitable.[18] Holding Broad aptitude tests used in hiring practices that disparately impact ethnic minorities must be reasonably related to the job. ...


In situations involving only the equal protection clause, however, the focus of the court is on discriminatory intent. Such intent was manifested in the seminal case of Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977). In that case, the plaintiff, a housing developer, sued a city in the suburb of Chicago that had refused to re-zone a plot of land on which the plaintiff intended to build low-income, racially integrated housing. On the face, there was no clear evidence of racially discriminatory intent on the part of Arlington Heights's planning commission. The result was racially disparate, however, since the refusal supposedly prevented mostly African-Americans and Hispanics from moving in. Justice Lewis Powell, writing for the Court, stated, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Disparate impact merely has an evidentiary value; absent a "stark" pattern, "impact is not determinative." (See also Washington v. Davis (1976).) Flag Seal Nickname: The Windy City Motto: Urbs In Horto (Latin: City in a Garden), I Will Location Location in Chicagoland and northern Illinois Coordinates , Government Country State Counties United States Illinois Cook, DuPage Mayor Richard M. Daley (D) Geographical characteristics Area     City 606. ... A typical zoning map; this one identifies the zones, or development districts, in the city of Ontario, California Zoning is a North American term for a system of land-use regulation. ... Incorporated Village in 1836. ... Lewis Franklin Powell, Jr. ... This article does not cite any references or sources. ... Washington v. ...


Defenders of the rule in Arlington Heights and Washington v. Davis argue that the equal protection clause was not designed to guarantee equal outcomes, but rather equal opportunities and that therefore one should not be concerned with trying to fix every racially disparate effect. One should worry only about intentional discrimination. Others point out that the courts are merely enforcing the equal protection clause, and that if the legislature wants to correct racially disparate effects, it may do so through further legislation.[19] This article or section does not cite its references or sources. ... Equal opportunity is a descriptive term for an approach intended to provide a certain social environment in which people are not excluded from the activities of society, such as education, employment, or health care, on the basis of immutable traits. ...


Critics contend, on the other hand, that the rule would exculpate many instances of racial discrimination, since it is possible for a discriminating party to hide its true intention. To uncover the motives of the parties, the court should also consider whether the measure at issue would have disparate impact, critics argue.[20] This debate, though, goes on almost entirely in the academy, since the Supreme Court has not changed its basic approach as outlined in Arlington Heights.


Suspect classes

The Supreme Court has seemed unwilling to extend "suspect class" status (i.e., status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) to groups other than women and racial minorities. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class. Many commentators have noted, however—and Justice Marshall so notes in his partial concurrence—that the Court does appear to examine the City of Cleburne's denial of a permit to a group home for mentally retarded people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.[21] City of Cleburne v. ... Developmental disability is a term used to describe life-long disabilities attributable to mental and/or physical or combination of mental and physical impairments, manifested prior to age twenty-two. ...


In Lawrence v. Texas (2003), the Court struck down a Texas statute prohibiting homosexual sodomy on substantive due process grounds. In Justice Sandra Day O'Connor's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne. Holding A Texas law prohibiting homosexual sodomy violated the privacy and liberty of adults, under the Due Process Clause of the Fourteenth Amendment, to engage in private intimate conduct. ... Since its coinage, the word homosexuality has acquired multiple meanings. ... François Elluin, Sodomites provoking the wrath of God, from Le pot pourri de Loth (1781). ... Sandra Day OConnor (born March 26, 1930) is an American jurist who was the first woman to serve as an Associate Justice of the Supreme Court of the United States. ...


Notably, O'Connor did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation. Much as in City of Cleburne, though, the Court's decision in Romer v. Evans (1996), on which O'Connor also relied in her Lawrence opinion, and which struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination," seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.[22] While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.[23] Sexual orientation refers to the direction of an individuals sexuality, usually conceived of as classifiable according to the sex or gender of the persons whom the individual finds sexually attractive. ... Holding An amendment to the Colorado Constitution that allows discrimination against homosexuals and prevents the state from protecting them violated equal protection under the Fourteenth Amendment, because it was not rationally related to a legitimate state interest, but instead was motivated by animus towards homosexuals. ... Official language(s) English Demonym Coloradan Capital Denver Largest city Denver Largest metro area Denver-Aurora Metro Area Area  Ranked 8th in the US  - Total 104,185 sq mi (269,837 km²)  - Width 280 miles (451 km)  - Length 380 miles (612 km)  - % water 0. ... Sexual orientation refers to the direction of an individuals sexuality, usually conceived of as classifiable according to the sex or gender of the persons whom the individual finds sexually attractive. ...


Affirmative action

Affirmative action is the policy of consciously setting racial, ethnic, religious, or other kinds of diversity as a goal within an organization, and, in order to meet this goal, purposely selecting people from certain groups that have historically been oppressed or denied equal opportunities. In affirmative action, individuals of one or more of these minority backgrounds are preferred—ceteris paribus—over those who do not have such characteristics; such a preferential scheme is sometimes effected through quotas, though this need not necessarily be so. Manifestations Slavery Racial profiling Lynching Hate speech Hate crime Genocide (examples) Ethnocide Ethnic cleansing Pogrom Race war Religious persecution Blood libel Paternalism Police brutality Movements Policies Discriminatory Race / Religion / Sex segregation Apartheid Redlining Internment Ethnocracy Anti-discriminatory Affirmative action in the United States Emancipation Civil rights Desegregation Integration Equal opportunity... The term multiculturalism generally refers to a state of both cultural and ethnic diversity within the demographics of a particular social space. ... Ceteris paribus is a Latin phrase, literally translated as with other things [being] the same, and usually rendered in English as all other things being equal. ... Manifestations Slavery Racial profiling Lynching Hate speech Hate crime Genocide (examples) Ethnocide Ethnic cleansing Pogrom Race war Religious persecution Gay bashing Blood libel Paternalism Police brutality Movements Policies Discriminatory Race / Religion / Sex segregation Apartheid Redlining Internment Anti-discriminatory Emancipation Civil rights Desegregation Integration Equal opportunity Counter-discriminatory Affirmative action Racial...


Although there were forms of what is now called affirmative action during the Reconstruction (most of which were implemented by the same persons who framed the Fourteenth Amendment[24]) the modern history of affirmative action began with the Kennedy administration and started to flourish during the Johnson administration, with the Civil Rights Act of 1964 and two Executive Orders. These policies directed agencies of the federal government to employ a proportionate number of minorities whenever possible.[25] For other uses, see Reconstruction (disambiguation). ... The presidential seal was used by Rutherford B. Hayes in 1880 and last modified in 1959 by adding the 50th star for Hawaii. ...


Several important affirmative action cases to reach the Supreme Court have concerned government contractors—for instance, Adarand Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co. (1989). But the most famous cases have dealt with affirmative action as practiced by public universities: Regents of the University of California v. Bakke (1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger and Gratz v. Bollinger. An independent contractor is a person or business which provides goods or services to another entity under terms specified in a contract. ... Holding ... Court membership Case opinions Laws applied ... Adarand Constructors, Inc. ... This article should belong in one or more categories. ... This does not cite its references or sources. ... Holding The Court held that while affirmative action systems are constitutional, a quota system based on race is unconstitutional. ... Holding University of Michigan Law School admissions program that gave special consideration for being a certain racial minority did not violate the Fourteenth Amendment. ... Holding A state universitys admission policy violated the Equal Protection Clause of the Fourteenth Amendment because its ranking system gave an automatic point increase to all racial minorities rather than making individual determinations. ...


In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan law school. In dicta, however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In Gratz, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race not as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic. An admission in the law of evidence is a prior statement by an adverse party which can be admitted into evidence over a hearsay objection. ... The University of Michigan, Ann Arbor (U of M, UM, U-M or simply Michigan) is a coeducational public research university in the state of Michigan. ... In law, the term dicta is used to refer to a judges statement of legal opinion that is not directly relevant to the case being heard. ...


In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice Clarence Thomas in his dissent to Grutter—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one.[26] On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.[27] Clarence Thomas (born June 23, 1948) is an American jurist and has been an Associate Justice of the Supreme Court of the United States since 1991. ...


The Equal Protection Clause and voting

Although the Supreme Court had ruled in Nixon v. Herndon (1927) that the Fourteenth Amendment prohibited denial of the vote based on race, the first modern application of the Equal Protection Clause to voting law came in Baker v. Carr (1962), where the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause. This ruling was extended two years later in Reynolds v. Sims (1964), in which a "one man, one vote" standard was laid down: in both houses of state legislatures, each resident had to be given equal weight in representation. Holding A Texas law prohibiting blacks from voting in the Texas Democratic primary violated the Fourteenth Amendment. ... Holding The reapportionment of state legislative districts is not a political question, and is justiciable by the federal courts. ... This article is about the U.S. state of Tennessee. ... Federal courts Supreme Court Chief Justice Associate Justices Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures State Courts Counties, Cities, and Towns Other countries Politics Portal      In the United States of America, a state legislature is a generic term referring to the... Reynolds v. ...


It may seem counterintuitive that the equal protection clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment and the Nineteenth Amendment redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan (the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights, and in reference to the Fifteenth and Nineteenth Amendments, he said: Voting rights refers to the right of a person to vote in an election. ... Amendment XIX in the National Archives Amendment XIX (the Nineteenth Amendment) to the United States Constitution provides that neither the individual states of the United States nor its federal government may deny a citizen the right to vote because of the citizens sex. ... John Marshall Harlan II (May 20, 1899 – December 29, 1971) was an American jurist. ...

If constitutional amendment was the only means by which all men and, later, women, could be guaranteed the right to vote at all, even for federal officers, how can it be that the far less obvious right to a particular kind of apportionment of state legislatures ... can be conferred by judicial construction of the Fourteenth Amendment? [Emphasis in the original.]

However, Reynolds and Baker do not lack a rationale, if seen from another perspective. The Supreme Court has repeatedly stated that voting is a "fundamental right" on the same plane as marriage (Loving v. Virginia), privacy (Griswold v. Connecticut (1965)), or interstate travel (Shapiro v. Thompson (1969)). For any abridgment of those rights to be constitutional, the Court has held, the legislation must pass strict scrutiny.[28] Thus, on this account, equal protection jurisprudence may be appropriately applied to voting rights. Holding A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. ...


A recent use of equal protection doctrine came in Bush v. Gore (2000). At issue was the controversial recount in Florida in the aftermath of the 2000 presidential election. There, the Supreme Court decided that the different standards of counting ballots across Florida violated the equal protection clause. It was not this decision that proved especially controversial among commentators, and indeed, the proposition gained seven out of nine votes; Justices Souter and Breyer joined the majority of five—but only, it should be emphasized, for the finding that there was an Equal Protection violation. What was controversial was, first, the remedy upon which the majority agreed—that even though there was an equal protection violation, there was not enough time for a recount—and second, the suggestion that the equal protection violation was true only on the facts of Bush v. Gore; commentators suggested that this meant that the Court did not wish its decision to have any precedential effect, and that this was evidence of its unprincipled decision-making.[29] Holding In the circumstances of this case, any manual recount of votes seeking to meet the December 12 “safe harbor” deadline would be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. ... This article is about the U.S. State of Florida. ... Presidential electoral votes by state. ... David Hackett Souter (born September 17, 1939) has been an Associate Justice of the Supreme Court of the United States since 1990. ... Stephen Gerald Breyer (born August 15, 1938) is an American attorney, political figure, and jurist. ... In law, a Judicial remedy is the means by which a court, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order. ... This article is about the legal term. ...


Notes

  1. ^ For details on the rationale for, and ratification of, the Fourteenth Amendment, see generally Eric Foner's America's Unfinished Revolution, 1863—1877 (Perennial: 1989, ISBN 0-06-091453-X), as well as Brest, Levinson, Balkin & Amar, Processes of Constitutional Decisionmaking (Aspen: 2000, ISBN 0-7355-1250-7), pp. 241–42.
  2. ^ See Brest, Levinson, Balkin & Amar, pp. 242–46.
  3. ^ See Foner, passim. See also Bruce A. Ackerman, We the People, Volume 2: Transformations (Belknap Press: 2000, ISBN 0-674-00397-7), pp. 99–252.
  4. ^ Yick Wo v. Hopkins, 118 U.S. 355 (1886).
  5. ^ For a summary of the social, political and historical background to Plessy, see C. Vann Woodward, The Strange Career of Jim Crow (Oxford: 2001, ISBN 0-19-514690-5), p. 6 and pp. 69–70.
  6. ^ For a skeptical evaluation of Harlan, see Gabriel J. Chin, "The Plessy Myth: Justice Harlan and the Chinese Cases," 82 Iowa L. Rev. 151 (1996).
  7. ^ See Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). The Court declared that it did not need to hear argument on whether the Equal Protection Clause protected corporations, because "we are all of the opinion that it does." Id. at 396.
  8. ^ See Providence Bank v. Billings, 29 U.S. 514 (1830), in which Chief Justice Marshall wrote: "The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men." Nevertheless, the concept of corporate personhood remains controversial. See Carl J. Mayer, "Personalizing the Impersonal: Corporations and the Bill of Rights", 41 Hastings L.J. 577 (1990).
  9. ^ See David P. Currie, "The Constitution in the Supreme Court: The New Deal, 1931–1940," 54 U. Chi. L. Rev. 504, 547 (1987).
  10. ^ See generally Aldon D. Morris, Origin of the Civil Rights Movements (Free Press: 1986, ISBN 0-02-922130-7).
  11. ^ For an exhaustive history of the Brown case from start to finish, see Richard Kluger, Simple Justice (Vintage: 1977, ISBN 0-394-72255-8).
  12. ^ For a comprehensive history of school desegregation from Brown through Milliken (one on which this article relies for its assertions), see Brest, Levinson, Balkin & Amar, pp. 768–794.
  13. ^ For data and analysis, see Orfield, "Schools More Separate," Harvard University Civil Rights Project (July, 2001).
  14. ^ It is important to note that the Civil Rights Acts of 1964 and 1968 were enacted under both the Commerce Clause and section five of the Fourteenth Amendment. Insofar as those Acts regulate "private" conduct under the rubric laid down by the Civil Rights Cases, the Acts were passed by Congress under its Commerce Clause powers. The Supreme Court unanimously deemed the Civil Rights Act of 1964 constitutional under the Commerce Clause in Katzenbach v. McClung, 379 U.S. 294 (1964) and Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). In Fitzpatrick v. Bitzer (1976), the Supreme Court held that Title VII of the Civil Rights Act of 1964 validly applied to public employers.
  15. ^ For the history of the political branches' engagement with the Supreme Court's commitment to desegregation (and vice versa), see Lucas A. Powe, Jr., The Warren Court and American Politics (Belknap Press: 2001, ISBN 0-674-00683-6), and Nick Kotz, Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws That Changed America (Houghton Mifflin: 2004, ISBN 0-618-08825-3). For more on the debate summarized in the text, see, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago: 1993, ISBN 0-226-72703-3), and Michael J. Klarman, "Brown, Racial Change, and the Civil Rights Movement," 80 Va. L. Rev. 7 (1994).
  16. ^ 304 U.S. 144, 152 n.4 (1938). For a theory of judicial review based on Stone's footnote, see John Hart Ely, Democracy and Distrust (Harvard: 1981, ISBN 0-674-19637-6).
  17. ^ American Civil Liberties Union, Disability Rights - ACLU Position/Briefing Paper (1/1/1999)
  18. ^ Title VII of the Civil Rights Act of 1964 is applied to private employers such as Griggs Power through Congress's Commerce Clause power, not through the Fourteenth Amendment. (This is, of course, consistent with the state action doctrine articulated in the Civil Rights Cases.) However, Title VII also applies to public employers, and the Supreme Court has consistently applied the same disparate impact doctrine to both private and public employers. Compare Griggs with Dothard v. Rawlinson, 433 U.S. 321 (1977), a Title VII suit against the Alabama prison system.
  19. ^ For this point, see this blog post by the legal scholar Don Herzog. Note, however, that the Court as of late has put significant limits on the congressional power of enforcement. See City of Boerne v. Flores, Board of Trustees of the University of Alabama v. Garrett, and United States v. Morrison.
  20. ^ Contrast the Court's opinions in Arlington Heights and Washington v. Davis with, for example, Linda Hamilton Krieger, "The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Protection Opportunity," 47 Stan. L. Rev. 1161 (1995), and Charles R. Lawrence III, "Reckoning with Unconscious Racism," 39 Stan. L. Rev. 317 (1987).
  21. ^ See Gayle Lynn Pettinga, Note, "Rational Basis with Bite: Intermediate Scrutiny by Any Other Name," 62 Ind. L.J. 779 (1987); Neelum J. Wadhwani, Note, "Rational Reviews, Irrational Results," 84 Tex. L. Rev. 801, 809-11 (2006).
  22. ^ Courtney Joslin, "Equal Protection and Anti-Gay Legislation," 32 Harv. C.R.-C.L. L. Rev. 225, 240 (1997) ("The Romer Court applied a more 'active,' Cleburne-like rational basis standard ...."); Robert C. Farrell, "Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans," 32 Ind. L. Rev. 357 (1999).
  23. ^ See Andrew Koppelman, "Why Discrimination against Lesbians and Gay Men is Sex Discrimination," 69 N.Y.U L. Rev. 197 (1994).
  24. ^ See Eric Schnapper, "Affirmative Action and the Legislative History of the Fourteenth Amendment," 71 Va. L. Rev. 753 (1985).
  25. ^ See this subsection in the Wikipedia article on affirmative action.
  26. ^ See Peter H. Schuck, "Reflections on Grutter", in Jurist, Sept. 5, 2003.
  27. ^ See Reva B. Siegel, "Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown," 117 Harv. L. Rev. 1470 (2004); Stephen L. Carter, "When Victims Happen to Be Black," 97 Yale L.J. 420 (1988).
  28. ^ The rights to privacy and to interstate travel are part of the Supreme Court's substantive due process jurisprudence, and therefore are not derived from the equal protection clause; rather, the Court imported the standard of strict scrutiny from equal protection jurisprudence into substantive due process jurisprudence. This "importation" is further complicated by the fact that some cases, such as Loving v. Virginia, actually combine Equal Protection issues with substantive due process issues. The right to vote, however, seems to be an exception to the foregoing, in that the substantive right to vote appears to derive not from the Due Process Clause but from the Equal Protection Clause. (See the dicta and concurring opinions in the landmark case of San Antonio Independent School District v. Rodriguez.)
  29. ^ For the criticisms seen here, as well as several defenses of the Court's decision, see Bush v. Gore: The Question of Legitimacy, edited by Bruce A. Ackerman (Yale: 2002, ISBN 0-300-09379-9). Another much-cited collection of essays is The Vote, edited by Cass Sunstein and Richard Epstein (Chicago: 2001).

Eric Foner (born February 7, 1943 in New York City) is an American historian. ... Comer Vann Woodward (November 13, 1908 - December 17, 1999) was a pre-eminent American historian focusing primarily on the American South and race relations. ... Santa Clara County v. ... Holding Congress did not unconstitutionally exceed its powers under the Commerce Clause by enacting Title II of the 1964 Civil Rights Act, which prohibited racial discrimination in public accommodations. ... Holding The Fourteenth Amendment gives Congress the power to override a States Eleventh Amendment sovereign immunity for the purpose of enforcing civil rights on the States. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a neutral form which will... Judicial review is the power of a court to review the actions of public sector bodies in terms of their legality or constitutionality. ... John Hart Ely John Hart Ely (December 3, 1938 - October 25, 2003) is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr. ... The American Civil Liberties Union (ACLU) is an American organization consisting of two separate entities. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... A number of amendments to the United States Constitution include a Congressional power of enforcement. ... City of Boerne v. ... Holding The Court held that Congresss enforcement powers under the Fourteenth Amendment to the Constitution did not extend to the abrogation of state sovereign immunity under the Eleventh Amendment where the discrimination complained of was rationally based on a disability. ... Holding The Violence Against Women Act of 1994, 42 U.S.C. § 13981, is unconstitutional as exceeding congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution. ... The Stanford Law Review is a legal journal produced independently by Stanford Law School students. ... Manifestations Slavery Racial profiling Lynching Hate speech Hate crime Genocide (examples) Ethnocide Ethnic cleansing Pogrom Race war Religious persecution Blood libel Paternalism Police brutality Movements Policies Discriminatory Race / Religion / Sex segregation Apartheid Redlining Internment Ethnocracy Anti-discriminatory Affirmative action in the United States Emancipation Civil rights Desegregation Integration Equal opportunity... Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. ... The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School. ... Stephen L. Carter born October 26, 1954 is an American law professor, legal- and social-policy writer, columnist, and novelist. ... The Yale Law Journal, published continuously since 1891, is by far the oldest and most widely known of the eight law reviews published by students at Yale Law School. ... A landmark decision is the outcome of a legal case (often thus referred to as a landmark case) that establishes a precedent that either substantially changes the interpretation of the law or that simply establishes new case law on a particular issue. ... Holding Reliance on property taxes to fund public schools does not violate the Equal Protection Clause even if it causes inter-district expenditure disparities. ... Cass R. Sunstein (b. ... Richard Epstein Richard A. Epstein, born in 1943, is currently the James Parker Hall Distinguished Service Professor of Law at the University of Chicago Law School. ...

See also

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Majoritarianism is a political philosophy or agenda which asserts that a majority (sometimes categorized by religion, language or some other identifying factor) of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society. ... John Lockes writings on the Social Contract were particularly influential among the American Founding Fathers. ... Wikisource has original text related to this article: The United States Constitution The United States Constitution is the supreme law of the United States of America. ... The United States Constitution was written in 1787, adopted in 1788, and took effect in 1789, replacing the Articles of Confederation. ... The Articles of Confederation and Perpetual Union, commonly known as the Articles of Confederation, was the first governing document, or constitution, of the United States of America. ... The Mount Vernon Conference was a meeting of delegates from Virginia and Maryland at George Washingtons home at Mount Vernon, Virginia in March 1785. ... The Annapolis Convention was a meeting at Annapolis, Maryland of 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) that called for a constitutional convention. ... Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy. ... A proposal by Virginia delegates during the Philadelphia Convention of 1787, the Virginia Plan (also known as the Large State Plan) was notable for its role in setting the overall agenda for debate in the convention and, in particular, for setting forth the idea of population-weighted representation in the... The New Jersey Plan was a proposal for the structure of the United States Government proposed by William Paterson on June 15, 1787. ... The Connecticut Compromise, also known as the Great Compromise, was an essential agreement between large and small states reached during the Philadelphia Convention of 1787 that in part defined the legislative structure and representation that each state would have under the United States Constitution. ... The three-fifths compromise was a compromise between Southern and Northern states reached during the Philadelphia Convention of 1787 in which three-fifths of the population of slaves would be counted for enumeration purposes regarding both the distribution of taxes and the apportionment of the members of the United States... Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy. ... An advertisement for The Federalist The Federalist Papers are a series of 85 articles arguing for the ratification of the United States Constitution. ... This is a listing of the Federalist Papers. ... This article is being considered for deletion in accordance with Wikipedias deletion policy. ... Wikisource has original text related to this article: Preamble to the United States Constitution The Preamble to the United States Constitution is a brief introductory statement of the fundamental purposes and guiding principles which the Constitution itself was meant to serve. ... Wikisource has original text related to this article: Article One of the United States Constitution Article One of the United States Constitution describes the powers of the legislative branch of the United States government, known as Congress, which includes the House of Representatives and the Senate. ... Wikisource has original text related to this article: Article Two of the United States Constitution Article Two of the United States Constitution creates the executive branch of the government, comprising the President and other executive officers. ... Wikisource has original text related to this article: Article Three of the United States Constitution Article Three of the United States Constitution establishes the judicial branch of the federal government. ... Article Four of the United States Constitution relates to the states. ... Article Five of the United States Constitution describes the process whereby the Constitution may be altered. ... Article Six establishes the United States Constitution and the laws and treaties of the United States made in accordance with it as the supreme law of the land, and fulfills other purposes. ... Article Seven of the United States Constitution describes the process by which the entire document is to be ratified and take effect. ... The United States Bill of Rights consists of the first 10 amendments to the United States Constitution. ... The first ten amendments to the United States Constitution are known as the Bill of Rights. ... This is an incomplete list of proposed amendments to the United States Constitution, in reverse chronological order. ... The United States Constitution has been amended on 18 occasions—with a total of 27 individual successful amendments—since the Constitution was completed in 1787. ... The history of the Convention as a means of altering the fundamental law of a nation is documented in Prelude to the Grand Convention, the first chapter of a well researched book published in 1988 by Oxford University Press. ... Besides the more common method, Article V establishes the possibility of conventions within the individual states to ratify an amendment to the United States Constitution. ... Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the President of the United States to appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, while granting the United States Congress... The Appropriations Clause[1] or Statement and Account Clause refers to a provision of Article I, Section 9, Clause 7, that provides Congress with the power to control the spending of the federal government and requires that records of expenditures be made. ... The case or controversy clause of Article III of the United States Constitution has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy - that is, an actual dispute between adverse parties which is capable of... The citizenship clause (also known as the naturalization clause[1]) refers to a provision, in the Fourteenth Amendment to the United States Constitution at section one, clause 1. ... Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, states that Congress has the exclusive authority to manage trade activities between the states and with foreign nations and Indian tribes. ... The compact clause refers to a provision, in Article One of the United States Constitution at section ten, clause 3, that forbids states from entering into alliances with other states or with foreign governments. ... The Confrontation Clause of Sixth Amendment to the United States Constitution provides in relevant part: In all criminal prosecutions, the accused shall enjoy the right to . ... This article or section is in need of attention from an expert on the subject. ... Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause empowers the United States Congress: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. ... In United States law, adopted from English Law, due process (more fully due process of law) is the principle that the government must respect all of a persons legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty... The Emolument clause refers to a provision in Article One of the United States Constitution at section nine, clause 8, that forbids the United States from granting titles of Nobility and restricts members of the government from receiving gifts from foreign states without the consent of Congress. ... The Establishment Clause of the First Amendment to the United States Constitution states that: Congress shall make no law respecting an establishment of religion Together with the Free Exercise Clause, (or prohibiting the free exercise thereof), these two clauses make up what are commonly known as the religion clauses. ... Article III Section 2 Clause 2 of the United States Constitution. ... An ex post facto law (from the Latin for from something done afterward) or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. ... The Extradition clause or Interstate renditon clause[1] refers to a provision in Article Four of the United States Constitution at section two, clause 2, provides for the extradition of a criminal back to the state where he or she has committed a crime. ... The Free Exercise Clause of the First Amendment to the United States Constitution, taken with the Establishment Clause of the First Amendment make up the Religion Clauses. ... The Fugitive slave clause refers to a provision in Article IV, Section 2, Clause 3, that requires that slaves that escaped to another state be returned back to the owner in the state from which they escaped. ... Article IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties states have to respect and enforce the judicial rulings of other states. ... Article I, Section 8, Clause 1 of the United States Constitution, known as the Taxing and Spending Clause states: The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States... The Guarantee clause refers to a provision in Article IV, Section 4, Clause 1, requires the United States to provide a republican form of government for every state. ... The impeachment trial of President Bill Clinton in 1999, Chief Justice William H. Rehnquist presiding. ... The Militia clause refers to the provision in Article I, Section 8, Clause 15, that provide Congress with the power to summon a militia. ... A natural-born citizen is a special term mentioned in the United States Constitution as a requirement for eligibility to serve as President or Vice President of the United States. ... The necessary and proper clause (also known as the elastic clause, the basket clause, the coefficient clause, and the sweeping clause [1]) refers to a provision, in Article One of the United States Constitution at section eight, clause 18, which addresses implied powers of Congress. ... The no religious test clause of the United States Constitution is cited by advocates of separation of church and state as an example of original intent of the Framers of the Constitution of avoiding any entanglement between church and state, or involving the government in any way as a determiner... The Origination clause refers to a provision in Article One of the United States Constitution at section seven, clause 1, that mandates all revenue raising bills originate from the House of Representatives. ... Presentment clause The Presentment clause (Article I, Section 7) is a clause in the United States Constitution that outlines how a bill may become law. ... The Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents states from treating citizens of other states in a discriminatory manner, with regard to basic civil rights. ... This provision of the Fourteenth Amendment to the United States Constitution is unique among constitutional provisions in that some scholars believe it was all but read out of the Constitution in a 5-4 decision of the Supreme Court (see Slaughterhouse Cases of 1873). ... The Speech or Debate Clause (found in Article I, Section 6, Clause 1) is a clause in the United States Constitution which states that members of both Houses of Congress Its intended purpose is to prevent a President or other officials of the Executive branch from having members arrested on... Article VI, Paragraph 2 of the United States Constitution is known as the Supremacy Clause: The Supremacy Clause establishes the Constitution, Federal Statutes, and U.S. treaties as the supreme law of the land. ... The Suspension Clause is clause two of section nine of Article One of the United States Constitution. ... Eminent domain (U.S.), compulsory purchase (United Kingdom, New Zealand, Ireland), resumption (Australia) or expropriation (Canada, South Africa) in common law legal systems is the inherent power of the state to expropriate private property, or rights in private property, without the owners consent, either for its own use or... Article I, Section 8, Clause 1 of the United States Constitution, known as the Taxing and Spending Clause states: The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States... The Territorial Clause refers to Article IV, Section 3, paragraph 2 of United States Constitution: The interpretation of this clause gives the United States Congress the final power over every territory of the United States. ... It has been suggested that this article or section be merged with Jury. ... The three-fifths compromise was a compromise between Southern and Northern states reached during the Philadelphia Convention of 1787 in which three-fifths of the population of slaves would be counted for enumeration purposes regarding both the distribution of taxes and the apportionment of the members of the United States... The Vesting clauses refer to a provisions in Article I, Section 1; Article II, Section 1, Clause 1; and Article III, Section 1 of the United States Constitution; which vest the legislative, executive, and judicial powers in the Congress, president, and Supreme Court, respectively. ... Sometimes referred to as the War Powers Clause, the United States Constitution, Article One, Section 8, Clause 1, vests in the Congress the exclusive power to declare war. ... Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government in the United States. ... In the United States and many commonwelth nations, concurrent powers are powers held by both the states and the federal government and may be exercised simultaneously within the same territory and in relation to the same body of citizens. ... A number of amendments to the United States Constitution include a Congressional power of enforcement. ... For other uses, see Double jeopardy (disambiguation). ... The Dormant Commerce Clause, also known as the Negative Commerce Clause, is a legal doctrine that courts in the United States have implied from the Commerce Clause of the United States Constitution. ... The enumerated powers are a list of specific responsibilities found in Article 1 Section 8 of the United States Constitution, which enumerate the authority granted to the United States Congress. ... This article does not cite any references or sources. ... Incorporation of the Bill of Rights is the legal doctrine by which portions of the U.S. Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment. ... This article needs to be cleaned up to conform to a higher standard of quality. ... Wikisource has original text related to this article: Preamble to the United States Constitution The Preamble to the United States Constitution is a brief introductory statement of the fundamental purposes and guiding principles which the Constitution itself was meant to serve. ... This article is about the power of federal law in the United States. ... The separation of church and state is a legal and political principle derived from the First Amendment to the United States Constitution, which reads, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . ... theSeparation of powers is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power. ...

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Equal Protection Clause: Information from Answers.com (10642 words)
The 14th Amendment to the Constitution of the United States prohibits states from denying any person “the equal protection of the laws.” Until the mid-20th century the requirement was applied minimally-except in some cases of racial discrimination, such as the use of literacy tests and grandfather clauses to restrict the voting rights of fls.
The Equal Protection Clause was also narrowly interpreted by the Supreme Court in the nineteenth century, but became the centerpiece of the civil rights movement after World War II (1939-45).
Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause.
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