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Please note: Between 1865 and 1937, during the Reconstruction and the Industrial
Revolution, the dominant political controversy revolved around balancing regulatory
interests and those of business, and the Court defended the interests of American
capitalism and private enterprise. Only after 1937 did the Court begin to assume the
role of guardian for civil liberties and civil rights in defending the rights of minorities.
The Court’s role has changed with constitutional politics, as Harvard Law School
professor Paul Freund nicely expressed by analogy in his article entitled “My Philosophy
of Law” published in the Connecticut Bar Journal:
As Hamlet is to one generation a play of revenge, to another a conflict
between will and conscience, and to another a study in mother-fixation, so
the Constitution has been to one generation a means of cementing the
Union, to another a protectorate of burgeoning property, and to another a
safeguard of basic human rights and equality before the law (1965:220).
Since world war II, legal scholars have turned not only toward moral and political
philosophy as a guide for constitutional interpretation and the Court’s exercise of judicial
review, they have also called for the development of a “political jurisprudence,”
combining normative theory (what should be) with empirical studies 1 (research that tests
theories using quantitative or qualitative data collection methods and analyses); an
economic approach to law, which would make rights turn on cost-risk-benefit analysis;2
and drawn on theories of literary criticism.3 Still others in the Critical Legal Studies
movement attack theories of liberal legalism in an effort to deconstruct legal reasoning
and law to show its drawbacks for minorities, women, and the poor.4
Since this revolution in constitutional politics, the Court has evolved a proverbial double
standard: it gives economic regulation only minimal scrutiny, requiring only that it have
some rational basis, while giving that affecting civil liberties heightened scrutiny, often
upholding legislation only if the government’s interest in regulation is compelling. And
since 1937 the Court has assumed a special role in overseeing voting rights and access
to the political process; the freedom of speech, press, and association; and invidious
forms of racial and nonracial discrimination.
Understanding the development of law is an important concept when looking at how the
Supreme Court intervenes in this area. The table on the following page will help you to
understand this more clearly.
T
TH
HE
ED
DE
EV
VE
EL
LO
OP
PM
ME
EN
NT
TO
OF
FL
LA
AW
W
T
TH
HE
ES
SU
UP
PR
RE
EM
ME
EC
CO
OU
UR
RT
T’’S
ST
TE
ES
ST
TS
SA
AN
ND
DS
ST
TA
AN
ND
DA
AR
RD
DS
SF
FO
OR
RA
AP
PP
PL
LY
YIIN
NG
GE
EQ
QU
UA
AL
LP
PR
RO
OT
TE
EC
CT
TIIO
ON
NC
CL
LA
AU
US
SE
E
Tiers of Analysis
Upper Tier
Applies to suspect
classifications and
fundamental rights
Upper Tier
Applies to quasi-suspect
categories
Lower Tier
Applies to economic
regulation and nonsuspect
classifications
Standard of Judicial Review Legislative Classifications
Strict Scrutiny Test:
Race
See Brown v. Board of
Is there a compelling
Education of Topeka,
state interest to a
Kansas and City of
legislative
Richmond v. J. A.
classification?
Cronson
Alienage
But see Phyler v. Doe
Exacting Scrutiny or Strict
Gender
See Craig v. Brown
Rationality Test:
Is there a substantial
Affirmative Action
See Regents of the
relationship in fact
University of California
between the means
v. Bakke
and ends of legislation
Illegitimacy
Alienage
See Phyler v. Doe
Minimal Scrutiny Rational
Indigency
See San Antonio
Basis Test:
Independent School
Is there a rational basis,
District v. Rodriguez
reasonable basis for
legislation?
Age
Alienage
Where an essential
governmental function
is implicated
Claims of Fundamental Rights
Right to vote
Right to Interstate Travel
See Shapiro v. Thompson
Education, Housing, Welfare
See San Antonio
Independent School District v.
Rodriguez
The Fourteenth Amendment guarantees “the equal protection of the laws.” The
principle of equality embodied there might be interpreted to bar only discrimination
against blacks, because in the historical context of the post-Civil War period the Thirtyninth Congress was indisputably primarily concerned with ensuring that states did not
deny certain rights of newly freed blacks. However, the principle of equality has been
given broader application and a higher level of generality so as to bar other kinds of
racial discrimination against, for example, Hispanics, Native Americans, or Asians, the
amendment has been construed to forbid forms of nonracial discrimination against
women, children, and aliens. But how and on what basis may this broader application
of the equal protection clause be defended and d the Court’s exercise of judicial review
in this way justified?
In sum and in Judge Bork’s words, “The question is always the level of generality the
judge chooses when he states the idea or object of the Framers.” Interpretivists, no
less than noninterpretivists, cannot evade making basic constitutional choices in their
conceptions and formulations of the underlying principles of constitutional provisions.
Equal Protection of the Law
The Civil Rights Cases 109 U.S. 3, 3 S. Ct. 18 (1883)—At issue in five cases, coming
from California, Kansas, Missouri, New Jersey, and Tennessee, which were
consolidated and decided together, was the constitutionality of Congress’s passage of
the Civil Rights Act of 1875. That legislation made it a federal crime for owners and
operators of any public accommodation—schools, churches, cemeteries, hotels, places
of amusement, and common carriers—to “deny the full enjoyment of the
accommodations thereof” because of race or religion. Each of the cases involved
challenges to the enforcement of the law against innkeepers, theater owners, and a
railroad company. With only Justice John Marshall Harlan dissenting, Justice Joseph
Bradley held for the Court that Congress had no authority under the 13 th and 14th
Amendments to enact the Civil Rights Act of 1875, and had intruded on the powers
reserved to the states by the 10th Amendment. Moreover, Justice Bradley narrowly read
the 13th Amendment to only abolish slavery, but not private racial discrimination, and
limited the 14th Amendment to bar only racial discrimination backed by state action. By
contrast, Justice Harlan pointed out that the Court previously upheld Congress’s power
to regulate the behavior of private individuals—notably, when upholding fugitive slave
laws requiring the return of slaves to their owners. Also, in his view racial discrimination
was a badge of servitude abolished by the 13 th Amendment and a matter on which
Congress could legislate when enforcing the 13th and 14th Amendments. As a result of
the majority’s ruling racist attitudes were reinforced and the basis was laid for states to
pass Jim Crow laws, requiring the separate treatment of blacks and whites in public
accommodations.
Yick Wo v. Hopkins 118 U.S. 356 (1886)—In this case, the Court struck down San
Francisco’s safety ordinance making it illegal to operate laundries in other than stone or
brick buildings (and which was used to put Chinese laundries out of business), the
Court observed that “though the law itself be fair on its face and impartial in
appearance, yet, if it is applied and administered by public authority with an evil eye and
an unjust hand, so as practically to make unjust and illegal discrimination between
persons in similar circumstances, material to their rights, the denial of equal justice is
…within the prohibition of the Constitution.” At the same time, the equal protection
clause has never been broadly construed to forbid all discrimination or inequities before
the law. This is so because all laws—all legislative classifications—discriminate and
treat people differently. The central problem for the court lies in giving content and
application to the principle of legal equality—equality before the law. Just as
controversial as whether the 14th amendment aimed to ensure equal voting rights, and
whether it applied the guarantees of the Bill of Rights to the states, has been whether
the amendment forbids racial segregation, as well as other kinds of nonracial
discrimination. Justices, historians, and legal scholars, have long debated the
legislative history of the 14th Amendment. Some contend that the 39th Congress, which
drafted and adopted the amendment, aimed to give the federal government broad
powers to ensure the rights of blacks and to advance the political idea of equality. 5
Others have marshaled evidence that the amendment was not designed to forbid racial
segregation; indeed it neither granted voting rights to blacks nor prohibited racial
segregation. Still others concede that the historical record “is not entirely consistent”
and that the amendment is “so broad and general that it could be used to support
almost anything.
Plessy v. Ferguson 163 U.S. 537 3 S. Ct. 18 (1896)—Four years after the Supreme
Court struck down the Civil Rights Act of 1875 in the Civil Rights Cases (1883), Florida
enacted the first “Jim Crow” law, requiring separate but equal facilities for blacks and
whites in railway passenger cars. Louisiana and other states in the Deep South
followed with similar laws. Blacks were embittered by the passage of these laws, but
the Court adapted the Constitution to support racial discrimination by white legislative
majorities. In Louisville, New Orleans, and Texas Pacific Railroad v. Mississippi, 133
U.S. 587 (1890), the Court ruled that segregated railroad passenger cars traveling in
intrastate commerce did not interfere with Congress’s power to regulate interstate
commerce under the commerce clause.
Louisiana’s Jim Crow law was challenged in a test case brought by Homer Plessy, who
was one-eighth black. When he boarded a railroad train in New Orleans, which was
headed for Covington, Louisiana, he refused to sit in the car reserved for “colored only”
and sat in one reserved for whites instead. He was arrested, convicted, and appealed
to the Supreme Court. Plessy’s attorneys contended that Louisiana’s law violated the
13th and 14th Amendments.
By vote of eight to one, the Supreme Court rejected Plessy’s arguments. Note the
sharply different interpretations of the Constitution and social attitudes in the majority’s
opinion by Justice Henry Brown and in the sole dissenting opinion by Justice John
Harlan. Whereas Justice Brown dismisses the claim the state’s action violates the 13th
amendment as “too clear for argument,” Justice Harlan had no doubt that compulsory
racial segregation imposed precisely the kind of badge of servitude that the amendment
aimed to outlaw. Justice Brown’s treatment of the 14th Amendment claim is also far
from cogent. Although allowing that the amendment “was undoubtedly to enforce the
absolute equality of the two races before the law,” he adds that “in nature of things it
could not have been intended to abolish distinctions based on color,” but rather a
reasonable exercise of state police power “for the promotion of the public good, and not
for the annoyance or oppression of a particular class.” By contrast, Justice Harlan
conceived of all forms of racial discrimination to constitute invidious discrimination under
the 14th amendment.
Shelley v. Kraemer 334 U.S. 1, 68 S. Ct. 836 (1948)—Louis Kraemer and his wife
sought and obtained an injunction against J. D. Shelley, a black, from taking possession
of a parcel of land in their St. Louis, Missouri neighborhood. Shelley bought the land
from one of Kraemer’s neighbors without knowing that it was covered by a restrictive
covenant, barring owners from selling their land to members of “the Negro or Mongolian
race.” A state trial court found the covenant technically faulty, but was reversed on
appeal by the Missouri State Supreme Court, which held that the covenant did not deny
Shelley’s constitutional rights.
Shelley’s appeal to the Supreme Court became a test case for the NAACP and was
argued by the NAACP’s leading counsel, Charles Houston and Thurgood Marshall. The
NAACP sought to persuade the Court to reconsider an earlier ruling, Corrigan v.
Buckley, 271 U.S. 323 (1926), upholding restrictive covenants. Eighteen briefs,
including one by Democratic President Harry Truman’s solicitor general, supported the
NAACP’s position. With three justices (Reed, Jackson, and Rutledge) not participating
in the decision, the Court unanimously held that judicial enforcement or restrictive
covenants constituted state action and ran afoul of the 14 th Amendment. But note that
Chief Justice Fred Vinson neither overrules Corrigan nor explains why and how far the
state action doctrine extends to bar private racial discrimination not forbidden by the
states.
Palmore v. Sidoti 466 U.S. 429, 104 S. Ct. 1879 (1984)—The facts of this case,
involving the issue of interracial adoption, are stated at the outset of the opinion for the
Court by Chief Justice Warren Burger. Chief Justice Burger indicates:
When petitioner Linda Sidoti Palmore and respondent Anthony J. Sidoti, both
Caucasians, were divorced in May 1980 in Florida, the mother was awarded custody of
their three-year-old daughter. In September 1981 the father sought custody of the child
by filing a petition to modify the prior judgment because of changed conditions. The
change was that the child’s mother was then cohabitating with a Negro, Clarence
Palmore, Jr., whom she married two months later…After hearing testimony from both
parties and considering a court counselor’s investigative report, the court…concluded
that the best interests of the child would be served by awarding custody to the father.
The court’s rationale is contained in the following:
The father’s evident resentment of the mother’s choice of a black partner is not
sufficient to wrest custody from the mother. It is of some significance, however, that the
mother did see fit to bring a man into her home and carry on a sexual relationship with
him without being married to him. Such action tended place gratification of her own
desires ahead of her concern for the child’s future welfare. This Court feels that despite
the strides that have been made in bettering relations between the races in this country,
it is inevitable that Melanie will, if allowed to remain in her present situation and attains
school age and thus more vulnerable to peer pressures, suffer from the social
stigmatization that is sure to come.”…
The core purpose of the 14th Amendment was to do way with all governmentally
imposed discrimination based on race…The State of course, has a duty of the highest
order to protect the interests of minor children, particularly those of tender years. In
common with most states, Florida law mandates that custody determinations be made
in the best interest of the children involved. The goal of granting custody based on the
best interests of the child is indisputably a substantial government interest for the
purposes of the Equal Protection Clause. It would ignore reality to suggest that racial
and ethnic prejudices do not exist or that all manifestations of those prejudices have
been eliminated. There is a risk that a child living with a stepparent of a different race
may be subject to a variety of pressures and stresses not present if the child were living
with parents of the same racial or ethnic origin. The question, however, is whether the
reality of private biases and the possible injury they might inflict are permissible
considerations for removal of an infant child form the custody of its natural mother. We
have little difficulty concluding that they are not. The Constitution cannot control such
prejudices but neither can it tolerate them. Private biases may be outside the reach of
the law, but the law cannot, directly or indirectly, give them effect…The effects of racial
prejudice, however real, cannot justify a racial classification removing an infant child
from the custody of its natural mother found to be an appropriate person to have such
custody. The judgment of the District Court of Appeal was reversed.
Brown v. Board of Education of Topeka, Kansas (Brown I) 347 U.S. 483, 74 S.Ct.
686 (1954)—This case challenging the constitutionality of racially segregated public
schools arrived on the Supreme Court docket in 1951 and was consolidated with three
other cases (from Delaware, South Carolina, and Virginia) and another Bolling v.
Sharpe attacking the federal government’s segregated school system in the District of
Columbia. On such a politically explosive issue, Justice Tom Clark recalled, the Court
wanted “to get a national coverage, rather than a sectional one.” Oral arguments were
heard in December 1952. Instead of the decision coming down as expected in the
spring, however, the Court decided to hear rearguments in its next term. The Vinson
Court was split and deeply troubled by the prospect of white southern opposition to its
striking down racially segregated public schools. Justice Felix Frankfurter persuaded
his colleagues to carry the cases over to the next term because 1952 was an election
year. “When you have a major social political issue of this magnitude,” timing and
public reactions are important considerations, and, Frankfurter told a law clerk, “we do
not think this is the time to decide it.” By holding the cases over, the Court was able to
receive the views in the brief of the incoming administration of Republican President
Dwight Eisenhower. Public education must be considered in the light of its full
development and its present place in American life throughout the Nation. Only in this
way can it be determined if segregation in public schools deprives these plaintiffs of the
equal protection of the laws. 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. They concluded that in the filed of public education the doctrine of
“separate but equal” has no place. Separate educational facilities are inherently
unequal. Therefore, they held that the plaintiffs and others similarly situated for whom
the actions have been brought were; by reason of the segregation complained of,
deprived of the equal protection of the laws guaranteed by the 14 th Amendment. This
disposition makes unnecessary any discussion whether such segregation also violates
the Due Process Clause of the 14th Amendment. Because these are class actions,
because of the wide applications of this decision, and because of the great variety of
local conditions, the formulation of decrees in these cases presents problems of
considerable complexity. On reargument, the consideration of appropriate relief was
necessarily subordinated to the primary question—the constitutionality of segregation in
public education. We have now announced that such segregation is a denial of the
equal protection of the laws. In order that we may have the full assistance of the parties
in formulating decrees, the cases will be restored to the docket, and the parties are
requested to present further argument…
ENDNOTES
See Martin Shapiro, “Political Jurisprudence,” 52 Kentucky Law Review 294 (1964); Harry Stumpf,
Martin Shapiro, David Danelski, Austin Sarat, and David O’Brien, “Whither Political Jurisprudence?: A
Symposium,” 36 Western Political Quarterly 533 (1984); and Rogers Smith, “Political Jurisprudence, The
‘New Institutionalism,’ and the Future of Public Law,” American Political Science Review 89 (1988).
1
2
See, for example, Richard Posner, Economic Analysis of Law, 2nd Ed. (Boston: Little, Brown, 1977).
3
See William Bishin and Christopher Stone, Law, Language, and Ethics (Mineola, NY: Foundation Press,
1972); John Brigham, Constitutional Language (Westport, CT: Greenwood Press, 1978); Leif Carter,
Contemporary Constitutional Lawmaking (New York: Pergamon, 1985); James White, When Words Lose
Their Meaning (Chicago: University of Chicago Press, 1973); Richard Posner, Law and Literature: A
Misunderstood Relation (Cambridge: Harvard university Press, 1988); and James White, Justice as
Translation (Chicago: University of Chicago Press, 1990).
4
See David Kairys, Ed., The Politics of Law (New York: Pantheon, 1982); and Editors of the Harvard Law
Review, Essays on Critical Legal Studies (Cambridge: Harvard Law Review Association, 1986).
5
See Horace Flack, The Adoption of the Fourteenth Amendment (Baltimore, MD: Johns Hopkins
University Press, 1908); Jacobus tenBroek, The Antislavery Origins of the Fourteenth Amendment
(Berkeley: University of California Press, 1951); William Wiecek, The Sources of Antislavery
Constitutionalism in America (Ithaca, NY: Cornell University Press, 1977); and Howard Graham,
Everyone’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and
American Constitutionalism (Madison: State Historical Society of Wisconsin, 1968).