Talk:Equal Protection Clause

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Contents

[edit] What Wikipedia Ignores

This person is correct, Bingham made it more than clear from beginning to end the equal protection of the laws were the words of the Magna Carta, Article 40. He also said the equal protection of the laws were always a part of the US Constitution under the Fifths "any person" and not the Carta's "freemen."

It is also historically incorrect to say the Equal Protection Clause was a response to black codes, as Bingham himself approved of many of them under state authority. Instead, Bingham wanted to address the denial of vindication for civil wrongs in state courts. Blacks could not sue, be witnesses, or have a jury of their peers, etc. They were subjected to unequal proceedings, fines and punishments, and denied the protection of the laws before courts of justice.

I'll kick it around for a few days over how it should be edited to conform with the Congressional Globe record.

LawPro (talk) 13:09, 1 April 2008 (UTC)

I have one major issue with the Equal Protection article: Wikipedia ignores the historical meaning of the phrase "equal protection of the laws" as well as ignores the application for which was intended in the 14th. Wikipedia pretends that the prhase "equal protection" has a unknown meaning which is false. The framer and the chairman of the committe of reconstruction told us exactly what it means. Why does Wikipedia refuse to reveal this?

Can you tell me what you mean? I.e., can you indicate what you believe (1) "the historical meaning" is, and (2) the "intended application" was? I'm also unsure why you believe we can take the understandings of the "framer" (do you mean Bingham?) and the chairman of the Committee of Reconstruction as determinative of the meaning of the Clause. After all, the Clause was drafted by Bingham, but it was sent to the states by the Congress as a whole, and was ratified by many state legislators whose individual understandings are necessarily irrecoverable. (And this is to grant the assumption—a crucial and controversial one—that originalism is the only legitimate way in which to interpret the Clause.) Nevertheless, I readily and enthusiastically grant that Bingham's (and Stevens's) understanding of the Clause's meaning is important. But his understanding must be documented by sources. Also, can you indicate where the article "pretends that the phrase 'equal protection' has an unknown meaning"? Thank you. Hydriotaphia 09:00, 27 December 2005 (UTC)

REPLY:

The historical meaning comes from the Magna Charta 46th clause, just as Bingham said. The intended application was to prevent unequal application of the laws which are secured to all persons. Right to due process of law before one can be deprived of their life, liberty or property is a right secured to all persons. A right to a public education is not a right secured to all persons, only lawful state residents, and therefore, is not a equal protection issue. Bingham said:

"[T]he gentleman inquires, what does this mean [equal protection of the laws]? It ought to have occurred to the gentleman that it means that no State shall deny to any person within its jurisdiction the equal protection of the Constitution of the United States, as that Constitution is the supreme law of the land, and, of course, that no State should deny to any such person any of the rights which it guaranties to all men, nor should any State deny to any such person any right secured to him either by the laws and treaties of the United States or of such State."

Yes, the proposed amendment was sent to the State legislature's for them to ratify and they were consulted to what the 14th amendment was intended to accomplish. Stevens said as much when he introduced it:

"I believe it is all that can be obtained in the present state of public opinion. Not only Congress but the several States are to be consulted. Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent than this."

My comment in regards to "unknown meaning" was a direct reference to this line:

"What exactly that means, of course, has been the subject of great debate..."

It makes it seem as though the framers left no record as to what it means! THEY DID!

For a complete history on the equal protection clause there is no better source then P.A. Madison's A Dummies Guide to Understanding the 14th Amendment which relies on the actual words and understanding of those responsible for the amendment!

http://federalistblog.us/mt/articles/14th_dummy_guide.htm

OK, that's all fine and good. I encourage you to contribute some of what you've written above (adding it, of course, only to the appropriate sections of the article). As to the education issue, I take it that you are arguing that Brown was wrongly decided? If you want to contribute a paragraph on that, that's fine; however, you should be aware—and add to the text—that yours is an extremely controversial position to take, and one that most (if not almost all) originalists reject. See Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Virginia Law Review 947 (1995) (arguing that under the original understanding of the Equal Protection Clause, Brown was rightly decided). Finally, the article says merely that the meaning of the Clause "has been the subject of great debate." That is a descriptive statement: it has, in fact, been the subject of great debate. Evidently you believe that the meaning of the Clause should not be the subject of great debate (since, to you, its meaning is obvious). However, that view does not mean that other people have not—as a matter of fact—vigorously argued about its meaning. Hydriotaphia 10:01, 28 December 2005 (UTC)

[edit] Suggestions

First, good job on picking this topic for an expanded article, and potential feature article. I believe it to be an important enough topic to deserve one, although I don't usually review legal topics on Wikipedia (and probably wouldn't have this one, but for your notice).

You seem to have made quite a flying start. The only general suggestions I have are

  • Have no qualms about editing extensively and ruthlessly;
  • Be brief as possible, but not at the expense of clarity or the import of the topic; and
  • Keep in mind that most readers will have never set foot in a law school.

These first two are also good rules for any legal writing, as I am sure you already know.

Specifically, you might want consider the following:

  • In the section "The background to the Equal Protection Clause", fourth para., perhaps you should use somewhat more neutral language to describe the opposition of Southern whites to the EPC and related statutes. I haven't been on Wikipedia as a contributor for that long, so I'm not sure if we have had significant problems with neo-Confederate vandals/trolls or not. Still, no need to feed them any more than can be reasonably avoided.
  • In the section "The beginnings of modern interpretation . . .", consider adding a para. concerning the role of the NAACP Legal Defense Fund and Thurgood Marshall in this development. Marshall and his mentor, Charles Houston, cherry-picked through hundreds (if not thousands) of cases over decades to find the best test cases to wear away at Plessy.
  • In the section "Who is a 'suspect class'?", consider making a brief reference to Lawrence v. Texas (2003). Although primarily a substantive due process case, equal protection is also discussed (in O'Connor's concurring op.). The public, and the GLBT community in particular, has awareness of this case, and it may be better to give it some mention.

Hope this helps. Good work; and good luck toward your future efforts. Edeans 20:18, 16 Dec 2004 (UTC)

I've tried to respond to some of your suggestions, especially those concerning the role of the NAACP in civil rights litigation. Indeed, I've found a wonderful image of Thurgood Marshall and Charles Hamilton Houston from the Maryland state archives. This message can be found on Wikipedia:Peer review as well. Thanks so much for your suggestions. If it's not too much to ask, please continue to critique the article. What you've said is very helpful. Hydriotaphia 03:23, Dec 17, 2004 (UTC)
I like the para. you added; it has the right amount of detail for this article, IMHO. I agree with you on the pic, too--it's great. I know I've seen it before, but I cannot remember where. When you have time, take a look at the Thurgood Marshall article. You may have something useful to contribute here as well. Edeans 04:56, 18 Dec 2004 (UTC)

I hope someone will critique the affirmative action section that I've added. I must admit that I strongly favor affirmative action, and hence I fear that the section may not be NPOV. Hydriotaphia 00:37, Dec 25, 2004 (UTC)

Seems pretty balanced to me. Just a couple minor issues:
"In every affirmative action case, the Supreme Court has employed, or has said it employed, strict scrutiny, since affirmative action policies categorize by race." seems incorrect, or mis-worded. I can easily believe all the cases that have made it to the Supreme Court were about race, but not all affirmative action policies in general. Maybe "...since affirmative action policies in these cases categorized by race.", if indeed that is the case?
I had to look up "uninvidious" on m-w.com, and the meaning it gave (for "invidious") was different enuf from what I expected from its apparent root words, I wonder if that's really what you meant.
In the US section of affirmative action, it agrees that the modern era began with LBJ, but the intro at the top of the article mentions "... this process was established by Presidential Decree in March of 1961 by President Kennedy..."--this is way out of my area of expertise, so I don't know what it's referring to, but it would probably be good to have the articles more in agreement.
Finally, in the first paragraph (and this may have just been because I automatically read "individuals of minority background are preferred" as "individuals of racial minority background are preferred"), but it might be better if there is some way to connect the fact that the oppressed groups listed in the first sentence typically are in the minority, somewhere before the passage I mis-read.I think I made the transition a bit smoother. Niteowlneils 04:30, 25 Dec 2004 (UTC)
you should link to http://en.wikipedia.org/wiki/Category:Fourteenth_Amendment_case_law. I think more discussion of modern interpretations and implications is necessary, even at the expense of some history. (e.g. wasn't that school drug zone case an EPC case and a departure from ? if not, I would also use the phrase "judicial action is state action" near Shelley v. Kramer as this is the "take away phrase" of that case. Scarykitty 07:35, 27 Dec 2004 (UTC)
Scarykitty, thank you for your comments. I appreciate very much that you took the time to read the article. Here is why I disagree with your suggestions, however; please tell me if I misunderstand or misconstrue any of them.
  1. I was under the impression that the Fourteenth Amendment case law category included only that—case law. Indeed, the listing of articles on its category page seems to bear out this impression. Now certainly, all of the cases listed in the Equal Protection Clause article ought to be listed under the category of Fourteenth Amendment case law (as well as under the category called "Equal Protection cases"). But I figure listing the Equal Protection Clause itself as case law is both inaccurate and potentially confusing.
  2. What sort of modern interpretations and implications are you referring to? If I've missed something, please add in, or perhaps you should just clarify what you mean.
  3. I'm not sure what "school drug zone case" you're talking about. The closest thing I can think of is United States v. Lopez, which was a case about federal regulation of guns in school zones. Lopez was a Commerce Clause case, not an Equal Protection Clause case—though you're absolutely right that Lopez was something of a departure from post-1937 Commerce Clause jurisprudence.
  4. I think using the phrase "judicial action is state action" in summing up Shelley v. Kraemer isn't a bad idea at all. Here's what's stopping me from doing that, however: Shelley is something of a outlier in Equal Protection jurisprudence; I can't think of one significant case since Shelley that has used the maxim "judicial action is state action" to expand the reach of the Equal Protection Clause. (For example, private contracts or covenants that exclude women from country clubs—see Augusta National Golf Club—are still perfectly enforceable in the courts, despite Shelley.)
At any rate, thanks for your helpful comments. I encourage you to participate in the never-ending editing process of this article! Hydriotaphia 08:18, Dec 27, 2004 (UTC)
Forgive me, Scarykitty, I just realized that I misread you; please disregard number (1) above, and I shall follow your suggestion and link to the category of equal protection cases. Best, Hydriotaphia 08:35, Dec 27, 2004 (UTC)

User:Zantastik's addition about Bingham's statements is right on, factually. (Indeed, it was precisely those statements that Hugo Black relied on when making the case for total incorporation in Adamson v. California.) However, since the Bill of Rights has been incorporated not through the Equal Protection Clause, but rather through the Due Process Clause, the statement doesn't belong in this article. What I shall do, therefore, is transfer Zantastik's addition verbatim to an appropriate position in the incorporation article. Hydriotaphia 08:18, Dec 28, 2004 (UTC)

With due respect, I think moving the summary of the Court's holding in Plessy to the beginning of the section on the postwar interpretation of the Clause is pretty confusing. It makes the reader unsure what is being talked about. I shall therefore put it back where it was. I should say, though, that all of User:Neutrality's other edits were, in my opinion, great. (That isn't intended to sound condescending or, alternatively, sycophantic: it's just true.) Hydriotaphia 08:40, Dec 28, 2004 (UTC)

I have enlarged and—how to say this?—deflowered the lead. What do people think? Hydriotaphia 21:11, Dec 28, 2004 (UTC)

I have added a few paragraphs on voting rights under the Clause. I haven't yet had time to write something about Bush v. Gore, but I shall do so when I can. Hydriotaphia 07:04, Dec 29, 2004 (UTC)

[edit] The lead

The recent edit to the last sentence of the first paragraph has caused a redundancy. The last sentence now reads, "In the broadest view, the Equal Protection Clause is part of United States's continuing attempt to determine what egalitarianism should mean in practice and what 'equal protection of the laws' means." The last subordinate clause of this sentence is what is redundant, since the last two sentences of the second paragraph read: "After [the Clause's] enactment, the Constitution also guaranteed rights from abridgement by state governments—henceforth they could only make laws that protected people equally. What exactly that 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." To get rid of this redundancy, I shall erase the last clause of the last sentence of the first paragraph.

Also, I'm not sure I understand what was objectionable about the reference to "all men are created equal"—i.e., why that had to be erased. After all, equality was one of the things the Civil War was fought over—certainly Lincoln and the people who framed the Fourteenth Amendment thought so—and so I think it would be appropriate to include something about America's commitment, or at least purported commitment to equality. Indeed, I shall do so now. I hope I won't anger anyone by so acting. Hydriotaphia 08:53, Dec 31, 2004 (UTC)

[edit] From WP:PR

Most of what constitutes this article was added by me. I plan to add more information on the history of the courts' interpretation of the Clause—esp. from the Reconstruction to the Civil Rights Movement, incl. cases such as Plessy and Strauder and The Civil Rights Cases. Is there anything else I should add? I aspire to featuredarticledom. Criticism is greatly desired; lay it on me! Thanks, Hydriotaphia 02:00, Dec 15, 2004 (UTC)

OK, so I've added some more history, and an image. I've got more work to do—I plan a section on Brown and school integration—and I would love suggestions. Thanks again, Hydriotaphia 04:14, Dec 16, 2004 (UTC)

I made some suggestions on the talk page for the article. Looks like you have done some substantial work on this. Edeans 23:21, 16 Dec 2004 (UTC)

I've tried to respond to some of your suggestions, especially those concerning the role of the NAACP in civil rights litigation. Indeed, I've found a wonderful image of Thurgood Marshall and Charles Hamilton Houston from the Maryland state archives. This message can be found on the talk page of Equal Protection Clause as well. Thanks so much for your suggestions. If it's not too much to ask, please continue to critique the article. What you've said is very helpful. Hydriotaphia 03:22, Dec 17, 2004 (UTC)
I like the para. you added; it has the right amount of detail for this article, IMHO. I agree with you on the pic, too--it's great. I know I've seen it before, but I cannot remember where. When you have time, take a look at the Thurgood Marshall article. You may have something useful to contribute here as well. Edeans 04:58, 18 Dec 2004 (UTC)

I have removed the peer review notice and am going to propose the article for featured article status. Hydriotaphia 04:45, Dec 20, 2004 (UTC)

[edit] McCabe v. Atchison

I've done a little research on McCabe v. Atchison, which I hadn't heard of before its addition here, and it seems that a good deal of the information included in the article about McCabe is erroneous. There were not four dissents, but four justices who concurred in the judgment (i.e., in the judgment only, not the opinion). It was not an influential decision; indeed, there have been only 18 citations of it by the Supreme Court since 1914, which is, for a purportedly important case, very, very small. (I think it's also significant that the last citation occurred 25 years ago.) I'm therefore going to erase the paragraph on McCabe. Hydriotaphia 23:37, Feb 3, 2005 (UTC)

[edit] Construction of the Equal Protection Clause

The first line of the article states, "The Equal Protection Clause is a part of the Fourteenth Amendment to the United States Constitution, providing that "no state shall make or enforce any law which shall...deny to any person within its jurisdiction the equal protection of the laws." The actual clause comes from the following sentence in the 14th Amendment: "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".

It seems to me that the correct paraphrase of the sentence which focuses specifically on the clause would be the following: "No state shall...deny to any person within its jurisdiction the equal protection of the laws". Though the three clauses of the sentence are seperated by semicolons, and leaves room for ambiguity, I believe that this construction makes sense, whereas the other one does not. The end of the clause is "of the laws", which I am assuming refers to existing laws, both federal and state. If it was merely federal law, the construction as it exists would make sense; since "of the laws" does not differentiate, however, it is confusing to me to think of a state making a law in order to deny equal enforcement of another law of the state to a particular person or persoItalic textns within that jurisdiction. Of course, it has always been confusing to me how the Supreme Court can strike down laws under the Equal Protection Clause when, under either construction, the Clause seems to only prevent the denial, or unequal enforecement, of the protection which already existing laws provide to certain persons in the jurisdiction. Even under this article's construction, the only law that would be struck down would be the law which, in my mind, confusingly is passed in order to prevent the protection another law provides to certain groups of people. But, Con Law has never really been my thing anyways.

In conclusion, I believe that the "blank space" that occurs before "deny" is the "shall any state" from the Due Process Clause, and not "No state shall make or enforce any law which shall..." That simply reads better to me; if the semi-colon was a comma, as I believe we would write it nowadays, there wouldn't be any confusion, but, as it stands, the sentence appears to be ambiguous (at least to modern eyes). I'm also not alone on this; in my brief little research to see how other publications parapharse it, I haven't found any yet which do it the way this article does it. But, as I said, the research was brief, and any help in this regard would be appreciated. - T.J. Swartz

According to the Encyclopaedia Britannica: "In the United States, the Fourteenth Amendment to the Constitution...prohibits states from denying any person 'the equal protection of the laws'". Since I cannot find a single article which construes the Fourteenth Amendment's equal protection clause in the way which this article presently does, I am going to go ahead and make the change detailed above. - T.J. Swartz

John Bingham was NOT THE AUTHOR of the Equal Protection clause. John Bingham was effectively the author of the Due Process clause, but Thaddeaus Stevens was the source for Equal Protection. See Benjamin B. Kendrick "The Journal of the Joint Committee of Fifteen on Reconstruction" and you will notice that Bingham proposed an amendment which would guarantee life liberty and property; then Stevens introduced an equality amendment. The two went into a subcommittee, and emerged as one.


[edit] Spoken Wikipedia

I have completed recording and editing the article as of today. However, I'm having problems trying to upload it to the servers. (My browser keeps timing out.) If someone can help me, please reply here or on my talk page. --Speaker Eric 09:07, 9 April 2006 (UTC)

Nevermind, I just had to split it in two.

[edit] Corporate personhood

I'd always heard that some of the furthest-reaching consequences of the equal protection clause come from its application to corporations, under the personhood doctrine per Santa Clara County v. Southern Pacific Railroad. Could a knowledgeable editor add to the article about this? Phr 00:11, 15 April 2006 (UTC)

Yeah, its shocking that this article got featured without any mention of the relevance of the equal protection clause to corporate law. The existing text is excellent, but thats a huge omission. This clip explains it pretty well for lack of a better source. savidan(talk) (e@) 07:10, 15 April 2006 (UTC)
It's actually not much of an omission at all. The Clause's application to corporations is what laymen tend to know about the Clause, but there has not been an important case applying the Clause to corporations in decades, and, under the rational basis test, its application is highly limited anyway. Hydriotaphia 09:24, 15 April 2006 (UTC)
If there hasn't been an important test in decades, that means the result of that test is settled law and so the article should describe the situation. Even if the application is bogus, if a lot of people have heard something about it, the article should have an explanation. Phr 06:05, 16 April 2006 (UTC)
I'd like to see some examples of laws which have been ruled constitutional or unconstitutional under the rational basis test... not necessarily regarding corporations. Mackerm 06:23, 16 April 2006 (UTC)
This is a GLARING absence - just do the history to see who has used the 14th amendment more in court, individuals on civil rights case, or corporations defending their "rights" as they claim apply to them in the Constitution and Bill of Rights (corporations aren't mentioned in either document). —The preceding unsigned comment was added by Carterobrien (talk • contribs) 21:18, 11 December 2006 (UTC).
I agree something should be said in the article, but, with due respect, this comment is simply incorrect. Individuals sue under the Equal Protection Clause with much, much more frequency than do corporations. As someone who works in the federal courts — and someone who is familiar with statistics gleaned from the annual reports of the Administrative Office of the United States Courts — I can tell you that almost everyone who sues under 42 U.S.C. § 1983, which allows an action to be brought in federal court to redress a constitutional violation by a state official, is a natural person and not a corporation. Indeed, I have never myself seen a corporation file suit under § 1983 (though it does happen — e.g., suits under the Dormant Commerce Clause etc.). Let me add that on a personal level I'm basically sympathetic to the point that Carterobrien is making. But we do need to get our facts right. Hydriotaphia 12:08, 10 January 2007 (UTC)

I have added a very short (but, I think, well-sourced) paragraph on corporate personhood. I hope that will assuage (the utterly justified) concerns expressed above. Hydriotaphia 05:17, 24 February 2007 (UTC)

[edit] Call me crazy...

...but is that Thurgood Marshall picture 'shopped? It seems like the resolution of the picture of the room is Much lower than that of the standing figure....to me it seems like he was cut&pasted in. What does everyone else think?--Zaorish 05:24, 15 April 2006 (UTC)

I think it's a painting... --Rory096(block) 19:01, 15 April 2006 (UTC) I'm an idiot, that's not the Thurgood Marshall one.

[edit] "While it might seem"

Here is the objectionable content that I removed:

Although the interpretation that some classes enjoy "greater protection" might seem to be the very antithesis of "equal protection", the Supreme Court has, on some, though not all, occasions, appeared to endorse just such an interpretation of the "Equal Protection Clause".

"Might seem to be the very antithesis of equal protection" is a perfect example of weasel words. Indeed, one of the examples of weasel words given by Wikipedia is "It may be that," which is close, and even less objectionable (because of the lack of the extremely weaselly "seem"), than the phrase used in this article. If it "might seem" this way, then it must "seem" so to certain, defined persons, and if those persons have stated this belief, then there must be record of it. And that, friends, is where the official policy of citing sources comes in. Before this "seem" phrase can be admitted to the article, it must be sourced. Right now, it is an unverified point of view posing as an innocuous report. I will therefore go ahead and remove this content again. Please, please, I beg you: cite your sources; don't use weasel words that smuggle bias into the article. Thanks.

Further, I'm not what "greater protection" means here. What strict or intermediate scrutiny does, or indeed, what rational basis scrutiny does at its margins, is to prevent government from categorizing based on unjustifiable criteria. I'm not sure how this is "greater protection." Again, for this "greater protection" point to be anything more than badly concealed bias, it will have to be supported by citation and attributed to an authority. Respectfully, Hydriotaphia 05:41, 20 May 2006 (UTC)

The article as it currently stands (as you have reverted to twice) defines "suspect class" as "status deserving of greater judicial protection"... I'm sure you were aware of that. For a definition like that to stand in an article titled "Equal Protection Clause" is exactly tantamount to writing "Some animals are more equal than others". In other words, yes, maybe it says everyone has equal protection under the law, but we've decided that what "equal" really means is that certain of our "favorite" people who are "better" have GREATER protection, while other citizens, who are not born so lucky, have "less" protection". This 20th C. interpretation is a return to pure feudalism (q.v.), it defeats the entire spirit of EQUALITY for ALL authored in the 1868 Law, and you're calling ME biased???
This anomaly of "equal" really means "greater for some" deserves to be at least addressed or pointed out in the article, maybe not in my exact words, but addressed, and it should not be repeatedly censored. ፈቃደ (ውይይት) 11:50, 20 May 2006 (UTC)
I'm sorry. I didn't mean to imply that you yourself were biased. And you're right, "status deserving of greater judicial protection" is an odd formulation, which should probably be modified. Respectfully, Hydriotaphia 14:35, 20 May 2006 (UTC)

[edit] "Carolene Products under siege"

I've erased this section. It presented a highly tendentious view – and one not widely shared – in fact, one I've never heard of from any legal academic – as fact. While it gave citations, it is clear that the author of the section was synthesizing disparate sources in order to present his or her own view. This is original research, of course. Respectfully, Hydriotaphia 18:17, 23 November 2006 (UTC)

[edit] Civil Rights Act of 1964

This needs to be changed since the Civil Rights Act of 1964 was passed under the interstate commerce clause and not the 14th amendment. —The preceding unsigned comment was added by Roadrunner (talk • contribs) 14:59, 4 January 2007 (UTC).

I change the wording of that section. The Supreme Court's decisions on the two cases are legally consistent, and I changed things to clean up.

[edit] This article needs a general rewrite

The fact that the civil rights acts of 1964 and 1968 were *not* passed under the equal protection clause is noted in the footnote, but needs to be made an integral part of the text. —The preceding unsigned comment was added by Roadrunner (talk • contribs) 15:28, 4 January 2007 (UTC).

The discussion of Title VII has been edited to reflect this fact. That should, I think, be sufficient. Hydriotaphia 05:37, 6 February 2007 (UTC)

I'm not sure exactly what the etiquette is in these matters, but I will be bold and erase the tags recently added to this article. Hydriotaphia 05:38, 6 February 2007 (UTC)