CRS Annotated Constitution

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Equal Protection: Judging Classifications by Law

A guarantee of equal protection of the laws was contained in every draft leading up to the final version of Sec. 1 of the Fourteenth Amendment.101 Immediately pressing to its sponsors was the desire to provide a firm constitutional basis for already–enacted civil rights legislation,102 and, by amending the Constitution, to place repeal beyond the accomplishment of a simple majority in a future Congress.103 No doubt there were conflicting interpretations of the phrase “equal protection” among sponsors and supporters and the legislative history does little to clarify whether any sort of consensus was accomplished and if so what it was.104 While the Court early recognized that African Americans were the primary intended beneficiaries of the protections thus adopted,105 the spare language was majestically unconfined to so limited a class or to so limited a purpose. Thus, as will be seen, the equal protection standard[p.1805]came to be applicable to all classifications by legislative and other official bodies, though not with much initial success,106 until now the equal protection clause in the fields of civil rights and fundamental liberties looms large as a constitutional text affording the federal and state courts extensive powers of review with regard to differential treatment of persons and classes.


101 The story is recounted in J. James, The Framing of the Fourteenth Amendment (1956). See also Journal of the Joint Committee of Fifteen on Reconstruction (B. Kendrick, ed. 1914). The floor debates are collected in 1 Statutory History of the United States—Civil Rights 181 (B. Schwartz, ed. 1970).
102 Civil Rights Act of 1866, ch. 31, 14 Stat. 27 , now in part 42 U.S.C. §§ 1981 , 1982. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422–37 (1968) .
103 As in fact much of the legislation which survived challenge in the courts was repealed in 1894 and 1909. 28 Stat. 36 ; 35 Stat. 1088 . See R. Carr, Federal Protection of Civil Rights: Quest for a Sword 45–46 (1947).
104 TenBroek, Equal Under Law (rev. ed. 1965); Frank & Munro, The Original Understanding of “Equal Protection of the Laws,” 50 Colum. L. Rev. 131 (1950); Bickel, The Original Understanding and the Segregation Decision, 69 L. Rev. 1 (1955); and see the essays collected in H. Graham, Everyman’s Constitution—Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism (1968). In calling for reargument in Brown v. Board of Education, 345 U.S. 972 (1952) , the Court asked for and received extensive analysis of the legislative history of the Amendment with no conclusive results. Brown v. Board of Education, 347 U.S. 483, 489–90 (1954) .
105 Slaughter–House Cases, 83 U.S. (16 Wall.) 36, 81 (1873).
106 In Buck v. Bell, 274 U.S. 200, 208 (1927) , Justice Holmes characterized the equal protection clause as “the last resort of constitutional arguments.”
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