Our Learning the Law series continues with a several posts dedicated to equal protection of the law. If you’ve not had a chance to review our posts on substantive due process of law, now would be a good time to do that. The equal protection model we will create actually builds on the substantive due process model, so understanding that model will help you to understand what we’re doing here.
As always, we begin our study with the text of the Constitution. The Equal Protection Clause is found in the Fourteenth Amendment. It provides, in relevant part, that “[n]o state shall … deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment, ratified in 1868 in the aftermath of the Civil War – during an historical period called Reconstruction – was, at the time, primarily intended for the benefit of the newly freed slaves. But if you pay attention to the ratification debates and the history surrounding its enactment, it becomes clear that equal protection of the laws meant more than racial equality. The Fourteenth Amendment embodies what we might call an equality principle. The idea is that all people who are similarly situated should be equal before the law.
At the outset, be careful not to oversimplify things. Equal protection of the law does not mean that “the government must treat everyone equally.” What it requires, instead, is that similarly situated people must be treated the same by the law. The real work, as far as equal protection is concerned, is deciding who is similarly situated. Stated more succinctly, the equal protection clause is all about how the government classifies us – the people (not just the citizens) who are subject to the jurisdiction of the United States and the various states.
By the way, if you’ve been paying attention, you may have noticed something a bit odd. When we talked about substantive due process, we mentioned that due process applies to both the federal and state-level governments. That’s because there are two due process clauses: one in the Fifth Amendment (which applies to the federal government) and one in the Fourteenth Amendment (which applies to the states).
But there is only one Equal Protection Clause, and it appears in the Fourteenth Amendment, which, on its face, only applies to the states. Does this mean that only the states are bound by the equal protection guarantee? Good question. The answer is no. The federal government, too, must abide by the equal protection principle. In a companion case to the landmark Brown v. Board of Education decision called Bolling v. Sharpe, 347 U.S. 497 (1954), the Supreme Court ruled that the Fourteenth Amendment equal protection guarantee also applies to the federal government. (The Court’s reasoning went something like this: Why? Because we said so.)
Classifications and Equal Protection of the Law
Equal protection of the law is all about how the government classifies us. What do we mean by that? There are well over 300 million Americans, and even the least-populated states have hundreds of thousands of residents. Our governments, federal, state, and local, cannot possibly deal with all of us, all the time, on an individual basis. In order for the government to go about the business of governing, it must classify us – it must deal with us in groups, organized on the basis of our relevant characteristics.
Let’s use a simple exampleme. Learning to drive and getting a driver’s license is, for most of us, a rite of teen passage. The ability to drive marks a degree of maturity, and it brings much sought-after independence for those who are readying themselves to embark upon adulthood. But driving a car is serious business. A car can be a dangerous instrumentality. How do we decide if a young person is ready – physically and emotionally mature enough – to handle that kind of responsibility? There are any number of ways we might go about identifying who is ready and who isn’t.
There are probably youngsters of 12 or 13 years who could safely drive a car on public roadways. Kids raised on a farm, for example, are often taught to operate farm machinery like tractors at a young age. So we might make a rule that simply says “Any person who is sufficiently mature to operate a motor vehicle shall be eligible for a driver’s license.” A youngster who thinks she’s up to the task could then, with her parents’ consent, appear at her local DMV office to apply for a license. If we had enough DMV offices and workers, such a system might be manageable.
But that is not the system we have adopted. Instead, we use classifications to decide who is and isn’t sufficiently mature to be a licensed driver. We know, from lots and lots of experience, that young teens usually are not up to the task. Thus, the law classifies us for purposes of deciding who is eligible for a license. We impose a minimum age requirement, usually something like 16. We require reasonably good vision, whether corrected or not, which also makes sense. And we require that would-be drivers understand the rules of the road, and prove that they can follow the rules, via testing. All of these are classifications: persons who are 16 years or older, who have good vision, and who can pass a test are entitled to seek a driver’s license.
Does this system of classifications work perfectly? Of course not. There are certainly persons younger than 16 who could drive a car perfectly well. There are persons much older than 16 – like me – who are lousy drivers. Thus our system is both under-inclusive – meaning it excludes some who could drive safely, and over-inclusive – meaning it grants driving privileges to people like me who really have no business being on the road. But we’ve decided, after decades of experience, that this system works fairly well.
This example illustrates nicely the idea of classifications and how they work. As we’ll see, the overwhelming majority of classifications are much the same: we understand their necessity, and they make some sense to us. Thus, when it comes time to decide if these classifications are constitutional, we apply the familiar and permissive rational basis standard, something you should be familiar with from our substantive due process series.
Suppose, to continue the example, that a state decided to add another qualification: no person who is of Asian descent will be eligible for a driver’s license. Right away, alarm bells should sound. We can understand why a degree of maturity and good eyesight might be important factors when deciding who can safely drive a car. But ethnicity? What does that have to do with driving? The answer is absolutely nothing. If a state were to impose such a classification, most of us would recognize this as the invidious discrimination that it is, and we would demand that the government justify its discrimination with something much more searching than rational basis review.
What’s really at work here? Society is well within its power to classify us based on characteristics that matter to safe driving when it decides who to license. But if the government tries to classify us based on characteristics that are irrelevant to one’s ability to safely operate a motor vehicle, we question why. What we’re really trying to do is figure out who is similarly situated, possessed of the characteristics needed to safely drive a car. Maturity? Sure. Good eyesight? Of course. Being of a certain race or ethnicity? Nope.
It should come as no surprise that for the vast majority of classifications, even those that seem a bit silly or ineffective, rational basis is the standard courts apply to decide whether the law denies equal protection. But if the government’s classification is suspect (classifications based on race, ethnicity, or national origin fall into this group) or quasi-suspect (classifications based on gender or illegitimacy) then a reviewing court applies a form of elevated scrutiny to decide if the classification survives. You already know one form of elevated scrutiny: strict scrutiny. We learned that strict scrutiny gets applied to any law that substantially impairs the exercise of fundamental right. That same standard is used for suspect classifications. A third level of review, called intermediate scrutiny because it falls between rational basis and strict scrutiny, is used for quasi-suspect gender- and illegitimacy-based classifications.
That’s it for now. In our next post, we’ll talk more about suspect and quasi-suspect classes. We’re working our way toward an equal protection analytical model, so stay tuned.
 Ever wondered how to understand a case citation? It’s easy. The case citation always begins with the name of the first-listed party on each side of the case. That is followed by a citation that uses this format: XX YYY ZZ. The first set of numbers – XX – represents the volume number of a case reporter. The words or initials that follow – represented here by YYY – are an abbreviation of the case reporter where the decision appears. The final set of numbers – ZZ – is the page number of the volume where the case decision begins. In our Bolling cite, Bolling and Sharpe were parties to the case. The decision appears in volume 347 of the United States Reports, abbreviated U.S. The United States Reports is the official reporter of United States Supreme Court decisions. The case begins on page 497 of that volume.