Race-Based Classifications: Historical Background
Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
A guarantee of equal protection of the laws was contained in every draft leading up to the final version of section 1 of the Fourteenth Amendment.1 The desire to provide a firm constitutional basis for already-enacted civil rights legislation2 and to place repeal beyond the accomplishment of a simple majority in a future Congress was important to its sponsors.3 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.4 Although the Court early recognized that African Americans were the primary intended beneficiaries of the protections thus adopted,5 the spare language was majestically unconfined to so limited a class or to so limited a purpose. Though efforts to argue for an expansive interpretation met with little initial success,6 the equal protection standard ultimately came to be applicable to all classifications by legislative and other official bodies. Now, the Equal Protection Clause looms large in the fields of civil rights and fundamental liberties as a constitutional text affording the federal and state courts extensive powers of review with regard to differential treatment of persons and classes.
The Traditional Standard: Restrained Review
The traditional standard of review of equal protection challenges of classifications developed largely though not entirely in the context of economic regulation.7 It is still most often applied there, although it appears in many other contexts as well,8 including so-called “class-of-one” challenges.9 A more active review has been developed for classifications based on a “suspect” indicium or affecting a “fundamental” interest. “The Fourteenth Amendment enjoins ‘the equal protection of the laws,’ and laws are not abstract propositions.” Justice Frankfurter once wrote, “They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” 10 Thus, the mere fact of classification will not void legislation,11 because in the exercise of its powers a legislature has considerable discretion in recognizing the differences between and among persons and situations.12 “Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.” 13 Or, more succinctly, “statutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution.” 14
How then is the line between permissible and invidious classification to be determined? In Lindsley v. Natural Carbonic Gas Co.,15 the Court summarized one version of the rules still prevailing. “1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” Especially because of the emphasis upon the necessity for total arbitrariness, utter irrationality, and the fact that the Court will strain to conceive of a set of facts that will justify the classification, the test is extremely lenient and, assuming the existence of a constitutionally permissible goal, no classification will ever be upset. But, contemporaneously with this test, the Court also pronounced another lenient standard which did leave to the courts a judgmental role. In F.S. Royster Guano Co. v. Virginia,16 the court put forward the following test: “[T]he classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” 17 Use of the latter standard did in fact result in some invalidations.18
But then, coincident with the demise of substantive due process in the area of economic regulation,19 the Court reverted to the former standard, deferring to the legislative judgment on questions of economics and related matters; even when an impermissible purpose could have been attributed to the classifiers it was usually possible to conceive of a reason that would justify the classification.20 Strengthening the deference was the recognition of discretion in the legislature not to try to deal with an evil or a class of evils all within the scope of one enactment but to approach the problem piecemeal, to learn from experience, and to ameliorate the harmful results of two evils differently, resulting in permissible over- and under-inclusive classifications.21
In recent years, the Court has been remarkably inconsistent in setting forth the standard which it is using, and the results have reflected this. It has upheld economic classifications that suggested impermissible intention to discriminate, reciting at length the Lindsley standard, complete with the conceiving-of-a-basis and the one-step-at-a-time rationale,22 and it has applied this relaxed standard to social welfare regulations.23 In other cases, it has used the Royster Guano standard and has looked to the actual goal articulated by the legislature in determining whether the classification had a reasonable relationship to that goal,24 although it has usually ended up upholding the classification. Finally, purportedly applying the rational basis test, the Court has invalidated some classifications in the areas traditionally most subject to total deference.25
Attempts to develop a consistent principle have so far been unsuccessful. In Railroad Retirement Board v. Fritz,26 the Court acknowledged that “[t]he most arrogant legal scholar would not claim that all of these cases cited applied a uniform or consistent test under equal protection principles,” but then went on to note the differences between Lindsley and Royster Guano and chose the former. But, shortly, in Schweiker v. Wilson,27 in an opinion written by a different Justice,28 the Court sustained another classification, using the Royster Guano standard to evaluate whether the classification bore a substantial relationship to the goal actually chosen and articulated by Congress. In between these decisions, the Court approved a state classification after satisfying itself that the legislature had pursued a permissible goal, but setting aside the decision of the state court that the classification would not promote that goal; the Court announced that it was irrelevant whether in fact the goal would be promoted, the question instead being whether the legislature “could rationally have decided” that it would.29
In short, it is uncertain which formulation of the rational basis standard the Court will adhere to.30 In the main, the issues in recent years have not involved the validity of classifications, but rather the care with which the Court has reviewed the facts and the legislation with its legislative history to uphold the challenged classifications. The recent decisions voiding classifications have not clearly set out which standard they have been using.31 Clarity in this area, then, must await presentation to the Court of a classification that it would sustain under the Lindsley standard and invalidate under Royster Guano.
- 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).
- 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).
- 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).
- 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 Harv. L. Rev. 1 (1955); see also 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).
- Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873).
- In Buck v. Bell, 274 U.S. 200, 208 (1927), Justice Holmes characterized the Equal Protection Clause as “the usual last resort of constitutional arguments.”
- See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discrimination against Chinese on the West Coast).
- Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide prohibition does not violate Equal Protection Clause by distinguishing between terminally ill patients on life-support systems who are allowed to direct the removal of such systems and patients who are not on life support systems and are not allowed to hasten death by self-administering prescribed drugs).
- The Supreme Court has recognized successful equal protection claims brought by a class-of-one, where a plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for that difference. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (village's demand for an easement as a condition of connecting the plaintiff's property to the municipal water supply was irrational and wholly arbitrary). However, the class-of-one theory, which applies with respect to legislative and regulatory action, does not apply in the public employment context. Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146, 2149 (2008) (allegation that plaintiff was fired not because she was a member of an identified class but simply for “arbitrary, vindictive, and malicious reasons” does not state an equal protection claim). In Engquist, the Court noted that “the government as employer indeed has far broader powers than does the government as sovereign,” id. at 2151 (quoting Waters v. Churchill, 511 U.S. 661, 671 (1994), and that it is a “common-sense realization” that government offices could not function if every employment decision became a constitutional matter. Id. at 2151, 2156.
- Tigner v. Texas, 310 U.S. 141, 147 (1980).
- Atchison, T. & S.F.R.R. v. Matthews, 174 U.S. 96, 106 (1899). From the same period, see also Orient Ins. Co. v. Daggs, 172 U.S. 557 (1869); Bachtel v. Wilson, 204 U.S. 36 (1907); Watson v. Maryland, 218 U.S. 173 (1910). For later cases, see Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552 (1947); Goesaert v. Cleary, 335 U.S. 464 (1948); McGowan v. Maryland, 366 U.S. 420 (1961); Schilb v. Kuebel, 404 U.S. 357 (1971); Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980); Schweiker v. Wilson, 450 U.S. 221 (1981).
- Barrett v. Indiana, 229 U.S. 26 (1913).
- Barbier v. Connolly, 113 U.S. 27, 32 (1885).
- Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955).
- 220 U.S. 61, 78–79 (1911), quoted in full in Morey v. Doud, 354 U.S. 457, 463–64 (1957). Classifications which are purposefully discriminatory fall before the Equal Protection Clause without more. E.g., Barbier v. Connolly, 113 U.S. 27, 30 (1885); Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886). Cf. New York City Transit Auth. v. Beazer, 440 U.S. 568, 593 n.40 (1979). Explicit in all the formulations is that a legislature must have had a permissible purpose, a requirement which is seldom failed, given the leniency of judicial review. But see Zobel v. Williams, 457 U.S. 55, 63–64 (1982), and id. at 65 (Justice Brennan concurring).
- 253 U.S. 412 (1920).
- 253 U.S. at 415. See also Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573 (1910).
- E.g., F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) (striking down a tax on the out-of-state income of domestic corporations that did business in the state, when domestic corporations that engaged only in out-of-state business were exempted); Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935) (striking down a graduated tax on gross receipts as arbitrary because it was insufficiently related to net profits); Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936) (striking down a milk-price-control regulation that distinguished between certain milk producers based on their dates of entry into the market).
- In Nebbia v. New York, 291 U.S. 502, 537 (1934), speaking of the limits of the Due Process Clause, the Court observed that “in the absence of other constitutional restrictions, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare.”
- E.g., Tigner v. Texas, 310 U.S. 141 (1940) (exclusion of agriculture and livestock from price-fixing statute justified by heightened concerns surrounding concentrations of power in other industries); Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552 (1947) (where apprenticeship was a requirement to obtain a river pilot license, allowing river pilots to apprentice mostly friends and relatives justified upon desire to create a cohesive piloting community); Goesaert v. Cleary, 335 U.S. 464 (1948) (court will not question legislature's determination that allowing women to bartend gives rise to moral and social problems, but that such problems are relieved when a barmaid's husband or father is the owner of the bar); Railway Express Agency v. New York, 336 U.S. 106 (1949) (upholding ban on advertising on the side of delivery trucks except by the business employing the truck, as legislature could determine that the nature and extent of the distraction presented by the latter advertising did not present the same threat to traffic); McGowan v. Maryland, 366 U.S. 420 (1961) (allowing the sale of certain products on Sunday, while prohibiting the sale of others, does not exceed a state's wide discretion to affect some groups of citizens differently than others).
- Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955); McDonald v. Board of Election Comm’rs, 394 U.S. 802, 809 (1969); Schilb v. Kuebel, 404 U.S. 357, 364–65 (1971); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981).
- City of New Orleans v. Dukes, 427 U.S. 297, 303–04 (1976); City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974).
- Dandridge v. Williams, 397 U.S. 471, 485–86 (1970); Jefferson v. Hackney, 406 U.S. 535, 549 (1972). See also New York City Transit Auth. v. Beazer, 440 U.S. 568, 587–94 (1979).
- E.g., McGinnis v. Royster, 410 U.S. 263, 270–77 (1973); Johnson v. Robison, 415 U.S. 361, 374–83 (1974); City of Charlotte v. International Ass’n of Firefighters, 426 U.S. 283, 286–89 (1976). It is significant that these opinions were written by Justices who subsequently dissented from more relaxed standard of review cases and urged adherence to at least a standard requiring articulation of the goals sought to be achieved and an evaluation of the “fit” of the relationship between goal and classification. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 182 (1980) (Justices Brennan and Marshall dissenting); Schweiker v. Wilson, 450 U.S. 221, 239 (1981) (Justices Powell, Brennan, Marshall, and Stevens dissenting). See also New York City Transit Auth. v. Beazer, 440 U.S. 568, 594 (1979) (Justice Powell concurring in part and dissenting in part), and id. at 597, 602 (Justices White and Marshall dissenting).
- E.g., Lindsey v. Normet, 405 U.S. 56, 74–79 (1972) (requirement for tenant to post forfeitable bond for twice the amount of rent expected to accrue pending appellate decision on landlord-tenant dispute violates Equal Protection); Eisenstadt v. Baird, 405 U.S. 438 (1972) (state cannot provide dissimilar access to contraceptives for married and unmarried persons); James v. Strange, 407 U.S. 128 (1972) (statute allowing state to seek recoupment of attorney fees from indigent defendants who were provided legal counsel may not treat defendants differently from other civil debtors); Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (state may not exclude households containing a person unrelated to other members of the household from food stamp program); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (rejecting various justifications offered for exclusion of a home for persons with intellectual disabilities in an area where boarding homes, nursing and convalescent homes, and fraternity or sorority houses were permitted). The Court in Reed v. Reed, 404 U.S. 71, 76 (1971), used the Royster Guano formulation and purported to strike down a sex classification on the rational basis standard, but, whether the standard was actually used or not, the case was the beginning of the decisions applying a higher standard to sex classifications.
- 449 U.S. 166, 174–79 (1980). The quotation is at 176-77 n.10. The extent of deference is notable, inasmuch as the legislative history seemed clearly to establish that the purpose the Court purported to discern as the basis for the classification was not the congressional purpose at all. Id. at 186–97 (Justice Brennan dissenting). The Court observed, however, that it was “constitutionally irrelevant” whether the plausible basis was in fact within Congress’s reasoning, inasmuch as the Court has never required a legislature to articulate its reasons for enactng a statute. Id. at 179. For a continuation of the debate over actual purpose and conceivable justification, see Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 680–85 (1981) (Justice Brennan concurring), and id. at 702–06 (Justice Rehnquist dissenting). Cf. Schweiker v. Wilson, 450 U.S. 221, 243–45 (1981) (Justice Powell dissenting).
- 450 U.S. 221, 230–39 (1981). Nonetheless, the four dissenters thought that the purpose discerned by the Court was not the actual purpose, that it had in fact no purpose in mind, and that the classification was not rational. Id. at 239.
- Justice Blackmun wrote the Court’s opinion in Wilson, Justice Rehnquist in Fritz.
- Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461–70 (1981). The quoted phrase is at 466.
- In City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982), the Court observed that it was not clear whether it would apply Royster Guano to the classification at issue, citing Fritz as well as Craig v. Boren, 429 U.S. 190 (1976), an intermediate standard case involving gender. Justice Powell denied that Royster Guano or Reed v. Reed had ever been rejected. Id. at 301 n.6 (dissenting). See also id. at 296–97 (Justice White).
- The exception is Reed v. Reed, 404 U.S. 71 (1971), which, though it purported to apply Royster Guano, may have applied heightened scrutiny. See Zobel v. Williams, 457 U.S. 55, 61–63 (1982), in which the Court found the classifications not rationally related to the goals, without discussing which standard it was using.
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