"...Nor shall any State... deny to any person within its jurisdiction the equal protection of the laws."
Equal protection under the law is an essential part of a Constitutional and free society. It would be silly to create a government tasked with writing laws to protect us and our private property from each other, confine its power to write law by a Constitution, and then assume that these laws will be unequally applied to the population (the employer of government) at large. How foolish for the government we created–to take us out of a realm of complete inequality where only the strong survive and put us in a world with some peace, stability and therefore liberty—to use its lawmaking powers to destroy the liberty of certain people under its rule. The classically liberal point of law is the bring order to society and equal protection for everyone and their private property. It’s flawed and unjust law if applied unequally to the population it’s tasked with protecting.
How foolish would it be for us to create a government to give us laws and then say that laws protecting from thievery only apply to people with brown eyes? Meaning, if you have blue eyes, the government is not obligated to protect you from thieves–even if this bias is not codified in law. The government should protect everyone from thieves, no matter who they are. That is what it means to be government and that is what equal protection of the laws means. This is why the Constitution exists: to direct, confine and define the laws to which the people must be subject.
So, it’s a shame that the U.S. citizenry felt the need to add the equal protection clause into the Constitution. The Constitution alone should have been enough for government to apply law equally to everyone. The Constitution itself says nothing about race, religion or any other attributes that would define a group–(aside from the three-fifth compromise which stipulated that, during a census, the government would count three-fifths of those in servitude–this being the group stipulated–as part of the population of the Southern states, giving them a few more representatives based on population).
The historical reality is this though: it wasn’t federal law that the citizenry, at the time of the Fourteenth Amendment, believed was being applied unjustly and unequally. It was state law. The federal government’s realm of power was so limited at the time that few federal laws could directly affect people in such a specific, personal and unequal way. Only state laws that dealt with the citizen’s day to day living affected them directly in unequal ways. Laws that were supposed to bring about equality of liberty, property and stability were instead bringing these outcomes to some while depriving others of these same outcomes.
And so, the states and their citizenries felt the need, via the Fourteenth Amendment, to empower the federal government with the ability to act as a distant referee of the states and their laws, making sure that state laws never applied unequally to the citizens of a state, for whatever reason [at the time, the reason was race]. Granted, the Fourteenth Amendment also makes it explicit that the federal government cannot make or apply laws unequally either, but the major emphasis–given the language “no State”–was to prevent state abuse.
With this as the backdrop then, it’s a bit easier to assess how this clause has been interpreted, applied and used in the years since its addition to the U.S. Constitution. The common interpretation of this clause is this: the U.S. government should stop discrimination.
In theory, this sounds nice but in practical interpretation and applications, things are relatively murky and have wreaked havoc on Supreme Court precedent and interpretation over the years. Or maybe I should say, the Supreme Court has wreaked havoc on the topic by applying it so loosely and liberally; deliberately or not, throwing themselves into the murky water of arbitrary power.
Here’s the issue. What is discrimination? What counts as discrimination? Further, since the amendment refers to states as the primary target, does this mean that the Fourteenth Amendment only protects individuals from states laws that discriminate (assuming, of course, that there’s an accepted, agreed upon, unmoving understanding of what discrimination means) or can it be extended to all local governments and the private sphere? If two groups are given the ability to use equally suitable facilities but are prevented by government from using the same facilities as each other (separate but equal) is this a violation of equal protection (Plessy v. Ferguson 1896)? Or does equal protection merely mean both facilities are equal? Does equal protection mean that state marriage laws that prevent interracial marriage or gay marriage violate the Constitution? If these types of laws violate the equal protection clause why don’t laws preventing polygamy, incestuous marriages or marriages to minors also violate the clause?
If the clause protects or advantages certain group’s ability to be hired, given a government contract or accepted into a university, why are only some groups given such an advantage? The amendment has been used to advantage Latinos, African Americans and Native Americans chances for such potential opportunities (based on previous discrimination), but why has the Court refused to extend such advantages to Asian Americans (who have also experienced such discrimination), or people of certain religions, or age, or poverty levels, or intelligence, or human beauty, or a litany of other potential groupings that have likely experienced some sort of bias over the years?
The issue with extending this clause to the private sphere as well as interpreting it as broadly as it’s being interpreted now is simple: it’s painfully arbitrary. Where does it stop? Where does it start? Once it leaves the firm basis it has in the actual words of the amendment “states”, “equal protection” and “law”, its interpretation is fluid and limitless. And who then determines what equality means? Who decides that polygamy is not protected while gay marriage is? Based purely on the logic used to justify the unconstitutionality of state laws limiting interracial or gay marriage, polygamy should be legal in all states. So who is arbitrarily deciding the opposite is true and for how long? Based on this legal precedent and logic, shouldn’t polygamy or any kind of marriage be legalized in all states? If marriage is a right — federally — then ALL marriage is a right. The logic must be consistent but that’s not how arbitrary power works. Again, the point is not the issue, the point is the Constitution and where the realms of federal and state power start and stop.
So are you getting an idea about how arbitrary power works?
The Fourteenth Amendment has been essential to protecting and establishing justice and liberty in ways this country had previously rejected but desperately needed and at the same time it has been arbitrarily used for increasing the Court’s power and federal power over states in such a limitless fashion that there really is no end in sight.
I have no answers for you in this post, just questions to consider and arbitrary power to assess.
The Liberty Belle