Here is pulled together some facts and thoughts on 10 clauses in the U.S. constitution that have been ignored, misunderstood or misapplied. Some of the authors merely want the correct meaning to be restored by educating the judiciary, others wish to amend the constitution so as to correct the way the constitution is applied (to repeal or correct the problem clauses), and yet others would like an entirely new constitution. The focus here will be on one of the 10 troubling constitutional clauses:

1. The commerce clause
2. The contracts clause
3. The due process clause (amend 5 and 14)
4. The privileges or immunities clause
5. The equal protection of the laws clause
6. The general welfare clause
7. The necessary and proper clause
8. The supremacy clause
9. The takings and tax clauses
10. The enumeration of rights clause (amend 9)

We have now come to the fifth of these clauses, The equal protection of the laws clause.

The Equal Protection of the Laws Clause

The Fourteenth Amendment, section 1, to the United States Constitution says: “... No State shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws.”

Supreme court rulings had gradually eroded the effectiveness of the Privileges and Immunities clause and the Due Process clause, as rather opaque or vague in the defense of liberties against government intrusions, the Equal Protection clause became the favorite.

The first of this triad had originally been a miniature bill of rights, right in the body of the original constitution. Its original broad meaning implied to the writers and the audience at the time all of the original rights and liberties obtained at birth by all free men. The full enumeration of these rights was considered impossible, foreshadowing the Ninth Amendment implied in it warning. But gradually courts became reticent about having the duty of discovering those rights or perceiving them as being violated by the encroachment of new laws.

Abandoning this protection or rights left us vulnerable to a convoluted reading of portions of the Bill of Rights and to exceptions allowed by "due process."

The second of the triad may not have been as full of meaning to the original audience, often being interchangeable with "the law of the land."

In any case, during the process of abandoning these in cases that challenged infringement of rights, the door was open to a view that rights were not unlimited and that they fell into several classes. They were no longer unalienable. The rights could be withheld or infringed or regulated, for awhile by "due process" protection, and finally when that clause fell by the wayside, the defense of rights was down to just making sure that all the laws, good or bad, applied equally to everyone.

What is the history of this last stage of the thee-stage process?

Much of the background of this is covered by Wikipedia.

The Equal Protections of the Law concept reflects the "all men are created equal" in the Declaration of Independence.

"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.

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 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.

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.

Developments related to the shrinking importance of the Equal Protection Clause

Through the history of court cases, especially Supreme Court cases affecting the applicability of various constitutional provisions, an interesting but sad shift occurred. As previously sketched in the earlier article in this series on the Privileges and/or Immunities clause, the progress of "understanding" or applicability changed, first FROM the broad pro-individual inalienable natural rights as the ultimate or fundamental protection of citizens against government power TO the Due Process Clause, and as we shall see in this article, finally TO the Equal Protection Clause.

In a way somewhat similar to the amnesia, or inability to see ,regarding the shocking implications of the Ninth Amendment, which was gradually found to be unclear and unspecific and finally (in Bork's words) "an ink blot", the courts began to see less and less clearly content in the Privileges and Immunities Clause. The courts came to see the loaded statement made in the Privileges and Immunities Clause as requiring them to study and reconstruct the immense array of individual rights that clause protected. Next came the Due Process Clause. It became less clear what the Due Process was, both as a process and also as to its substance.

Unfortunately this set up the legal system of our nation for infringements (of individual rights) that were once unthinkable. The reason was that the provision permitted near-infringements of rights, and some thought it even permitted theft. The important thing was not whether any person had perfectly legal title to something. If it was challenged, the challenge by government was automatically deemed to be constitutional. The dirty deed just had to be done through a lawful process.

What would be the proper "due process" that would protect all of one's natural rights? As matters stand it can only protect some of them. The Supreme Court now assumes that some laws may threaten rights in such a manner as to deserve "strict scrutiny," while others may threaten them in ways that require them to pass a lesser test, or "rational review." (see Footnote Four, below).

Due Process became fraught with philosophical problems for judges who tried to distinguish procedural due process from substantive due process.

Procedural due process - becomes a substitute for Privileges and Immunities

Substantive due process - putting an emphasis on preventing deprivation of ones rights.

Without attorneys and judges/justices holding to the natural rights principles, defending rights based on the Privileges and Immunities clause becomes a headache. Positivistic minds want to see it spelled out, but that clause is like an ink-blot. And after that, using the Due Process Clause became embarrassing and ends up being a weak defense, only requiring whatever that established procedures be applied. What can they use to defend rights?

The final barricades end up being the Equal Protection of the Laws Clause. Now we move from your rights being safe-guarded until the process that is accepted legally as "due process" only means a procedure that is defined by legislation, to this procedure can be any procedure at all, as long as it applies to everyone. However, it does not apply to government. Our final defense is equal protection of the laws - we may all be deprived equally of our rights, and legally, too

Supreme Court cases

United States v. Carolene Products Company

United States v. Carolene Products Company , 304 U.S. 144 ( 1938 ), [1] was an April 25 , 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited "filled milk" (skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream) from being shipped in interstate commerce. The defendant argued that the law was unconstitutional on both Commerce Clause and due process grounds. At this time interstate commerce had come to be understood to encompass all activities that could affect commerce among the states, as well as those that were directly involving transport between states.

The defendant company was charged with breaking the law described above, and at trial it had filed a motion to dismiss the charges on the grounds that the law was unconstitutional. The District Court for the Southern District of Illinois had granted the defendant's motion, and the Seventh Circuit Court of Appeals had affirmed the District Court's ruling.

Justice Harlan Stone, who wrote the decision, found that the law, being "presumptively constitutional" was essentially a legislative judgment, and was therefore not for the courts to overrule. Public health and safety were totally the domain of state and local laws. Applying the standard of "rational review," the Court held that the law was supported by substantial public-health evidence, and was not arbitrary or irrational.

Footnote Four

Carolene Products is best known for its "Footnote Four", which is perhaps "the most famous footnote in Constitutional law." The Court applied its lowest standard (rational review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases. The "rational basis" test was to argue that what the government was doing was reasonable, and therefore was constitutional, and for the court just to determine whether it was indeed reasonable.

Justice Stone suggested there were reasons to apply a more exacting standard of judicial review in other types of cases. Legislation aimed at minorities, who lack the normal protections of the political process, should be an exception to the presumption of constitutionality, and a higher standard of judicial review should be applied. This idea has greatly influenced equal protection jurisprudence, and even spawned a theory of judicial review.

The Text of Footnote Four

"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. 

"It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. 

"Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice 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." 

Footnote Four introduced the idea of levels of judicial scrutiny. In keeping with the New Deal Revolution, Footnote Four established the rational basis test for economic legislation, an extremely low standard of judicial review. The "rational basis test" mandates that legislation (whether enacted by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate state interest.

To pass strict scrutiny, the law or policy must satisfy three prongs:

• In order to satisfy strict scrutiny, a law must be neither vague nor substantially over- or under-inclusive.
• It must further an overriding state interest
• yet be drawn with narrow specificity to avoid any unnecessary intrusion on . . . rights.
  Lectlaw definition

Brown v. Board of Education

Brown v. Board of Education of Topeka , 347 U.S. 483 ( 1954), is a landmark decision of the United States Supreme Court , which overturned earlier rulings going back to Plessy v. Ferguson in 1896, by declaring that state laws which established separate public schools for black and white students denied black children equal educational opportunities. Handed down on May 17, 1954, the Warren Court's unanimous (9-0) decision stated, in no uncertain terms, that "separate educational facilities are inherently unequal." As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment, this victory thereby paving the way for integration and the Civil Rights Movement.

Background

For much of the 90 years preceding the Brown case, race relations in the U.S. had been dominated by racial segregation. In 1896 the United States Supreme Court case of Plessy v. Ferguson held that as long as the separate facilities for the separate races were "equal," the segregation did not violate the Fourteenth Amendment ("no state shall… deny to any person…the equal protection of the laws").

The District Court ruled in favor of the Board of Education, citing the U.S. Supreme Court precedent set in Plessy v. Ferguson, 163 U.S. 537 ( 1896), which had upheld a state law requiring "separate but equal" segregated facilities for blacks and whites in railway cars. The three-judge District Court found that segregation in public education has a detrimental effect upon negro children, but denied relief on the ground that the negro and white schools in Topeka were substantially equal with respect to buildings, transportation, curricular, and educational qualifications of teachers.

Supreme Court review

The case of Brown v. Board of Education as heard before the Supreme Court combined five cases: Brown itself, Briggs v. Elliott (filed in South Carolina), Davis v. County School Board of Prince Edward County (filed in Virginia), Gebhart v. Belton (filed in Delaware), and Bolling v. Sharpe (filed in Washington D.C.).

The decision

The 1954 decision reversed the precedent set by the Court's previous decision in Cumming v. Richmond County Board of Education, (1899) *, which had specifically validated the segregation of public schools. Brown did not, however, result in the immediate desegregation of America's public schools, nor did it mandate desegregation of public accommodations, such as restaurants or bathrooms, that were owned by private parties, which would not be accomplished until the passage of Title II of the Civil Rights Act of 1964. However, it was a giant step forward for the civil rights movement , placing the weight of the Federal Judiciary squarely behind the forces of desegregation.

Brown is often referred to as Brown I, because the following year, 1955, the Court completed its ruling. In this second Brown decision, Brown II, the Warren Court ordered the states' compliance with Brown I "with all deliberate speed." Brown II was argued by Robert L. Carter, who had earlier initiated some of the cases consolidated at the Supreme Court into Brown I.

Chief Justice Earl Warren wrote for the unanimous Court in Brown :

"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."

At the end of the day, the principle established is that all branches of government must create, apply, enforce, in an evenhanded way, nondiscriminatory legislation. A single class of people must not be treated in a way inferior to the way the rest of the people are treated.

Conclusion

Much adulation has been given the "equal protection of the laws" clause of the constitution. Some of it is no doubt deserved. But it will hardly do as the ultimate protection of our liberty rights, as compared to the due process protection, let alone the privileges and immunities clause.

Neither the individual liberties recognized in the original constitution of 1787 (the privilege of habeas corpus, no bills of attainder, nor ex post facto laws or the freedom to travel), or the Bill of Rights should be regarded as the ultimate defense.

After all what "equal protection" guarantees is just that everyone will enjoy the same justice and must suffer the same injustices.

It could be a lot of protection or it could be hardly any. It could be like living with a government that truly secured our liberties, or it could be like living with a government that could do anything it wanted.