Equal Protection under law Part Three

I said last month that we in the US had four forefathers--Washington, Jefferson, Franklin, and J. Adams.  Seems like the right number of "fore" fathers to have.  But what about adding Samuel Adams, cousin of John from Massachusetts, because he got the idea first and was the first to organize for revolution?  So he's five.   Then what about James Madison, who was younger, but came along just in time to be the main author of the Constitution and the Bill of Rights?  He's six.   I dug myself a hole here by saying "Four.  Exactly four."  Madison, by the way, felt like he was wasting time when he worked on the Bill of Rights.


I also said the election of Abraham Lincoln was accidental. It was “accidental” because Lincoln was a Republican and the Dems hadn't been able to agree on a candidate.  The party split; the northern Democrats nominated Douglas and the southern branch chose Breckinridge.   The Republicans were a new party, less than 10 years old, but they had already become a potent political force in the north.  Hence the presidency was, in a sense, handed to Lincoln. This would in hindsight appear to be intervention by a wiser power, providing just the man to preserve the Union at just the right time.

After the War, the general opinion that the fed gov had only limited powers was left intact.  The great bulk of human affairs remained the exclusive province of State gov and law.  But as new forms of transportation and industrialization took hold, pressure to expand the scope of federal power would grow and the country would face new constitutional questions about federal and state roles.  From Archibald Cox, The Court and the Constitution, p. 111.

The post-Civil War Amendments gave national guarantees of fundamental rights against aggression by the states.  In doing this, in the long run they greatly increased the role of the Supreme Court.  Before the Civil War few individual rights had received national protection.

The courts, however, have interpreted this clause, with its more inclusive reference to "any person," as providing a basic protection for all persons, not just African Americans.

Shmoop.com, a "student-oriented" site, says:  In order to honor both the primary intent of the amendment, and its more inclusive language, the courts have developed a tiered approach to its application. Laws employing racial classifications (i.e. laws that treat white and black people differently) are considered inherently suspect and subject to "strict scrutiny" by the courts. Laws that incorporate other forms of classifications, such as age or income level, are subject to a lower standard; states must prove only that the use of these classifications is reasonable. In recent decades, the Court introduced an "intermediate" standard for assessing laws incorporating gender classifications. Laws that treat men and women differently must serve "important governmental objectives" and states must prove that the dissimilar treatment of men and women is "substantially related to achievement of those objectives."¹    Some object to this "unequal approach to equal protection."

 

After a start on the history of equal protection under law, here are some practical points:

Generally, a law that treats citizens differently, when they are similar situated, is likely to violate equal protection. 

The Court has devised a “three-tiered scheme” to handle cases under the EPC.   Some types of cases receive “strict scrutiny,” in which the burden of proof is on the state and the plaintiff has the benefit of the doubt.  Cases involving certain other laws must pass a much easier test, called “rational basis scrutiny.”  Here, if the defendant government can state virtually any coherent rationale to justify the law, the law stands.  One commentator says about this, “Rational basis plaintiffs lose,” usually because the state invokes police power in the name of public health or welfare.  In between strict scrutiny and rational basis is a “middle tier” that does not reach the level of strict scrutiny but typically comes kind of close to it.  It is not close to the more lenient “rational basis” test.

 

Equal Protection Under The Law, Round Two

Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause.  We had a photo of the dignified old bird here, but it didn't copy across.  The next two paragraphs are pretty straight copies from Wikipedia.

Congress enacted the Civil Rights Act of 1866, providing that all those born in the United States were citizens of the United States, to overturn Dred Scott v. Sandford.  It also required "citizens of every race and color ... [to have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens." Doubts about whether Congress could legitimately enact such a law under the Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment.   The Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens led this effort. The most important among these was Bingham.

The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the ... Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated (would we include Robert E. Lee here?), to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.^[4]  By 1868 28 of 37 states had approved the Amendment and it became part of the Constitution.  In part it read:

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. 

        

Archibald Cox, in The Court and the Constitution (a fine one-volume introduction to constitutional law for nonlawyers) called equal protection “the great third clause.”  (p 113)  In October, 2012, a Supreme Court journalist said the most prominent cases of the coming term would probably be equal protection cases.  While the due process clause pointed at keeping citizens in possession of their life, liberty and property unless a lawful process took them away, equal protection was an emphasis on the privileges and protections of all citizens, regardless of color.  All of these phrases have helped Americans of every background breathe more freely.   

By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing some of the same restrictions on the federal government: "Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive."^[5]  This has the tidy legal name of "reverse selective incorporation."  Maybe someday we'll understand it and explain it here.  
Equal protection under law didn’t reach women until 1971 (though it has hardly reached them fully 41 years later), in the Supreme court decision of Reed v. Reed.^[6]  Note this took even longer than allowing interracial marriage, done by 1967’s Griswold v. Connecticut case.

Loudest Yelps for Freedom come from Drivers of Negroes

George Washington was indispensable to the rise of the United States as a free nation, but it turns out that three others—Jefferson, Adams and Franklin, not necessarily in that order—played about as great a role in American independence as Washington. Fair to say our country has Four Forefathers.

Since I know most about Adams, I title this blog on American Freedom "John Adams' Gift." More on that later, but for now I'm thinking about the ideal we have that all citizens enjoy equal protection from the law. This ideal, like many protectors of American freedom, came late to the party. The Framers--those who wrote the Constitution in 1787--may have been focused on creating an effective limited government, rather than on human rights per se. Four years after the Constitutional miracle in Philadelphia came the Bill of Rights. The Equal Protection Clause arrived about 75 years later. It grew out of the Civil War, and out of partisan bickering.  Anyone paying attention to the news in 2012 knows a lot about partisan bickering.

The Civil War had many causes, but two that led the list were that bickering plus honest differences over the role of slavery in Father George’s “free country.” (It would be fair to say 'Father John's free country.')  The conflict over slavery was foreshadowed by the most articulate Briton of the time. Dr. Samuel Johnson was as superior to his contemporaries in literature and expression as Shakespeare was to his. Johnson declared that he who was tired of London, was tired of life. He did not like colonial cries of “no taxation without representation.” Colonial taxation, Johnson thought, was the natural price for the good system that created those colonies. Why, he penned, do we hear the loudest yelps for freedom from the drivers of negroes?

Good question, but they didn't think so in the South in 1776.  Here are a couple more tidbits from Samuel Johnson that seem to fit today:
A merchant's desire is not of glory, but of gain; not of publick wealth, but of private emolument; he is, therefore, rarely to be consulted about war and peace, or any designs of wide extent and distant consequence. . . . the present generation, which seems to think itself in more danger of wanting money, than of losing liberty. ---Johnson, Taxation No Tyranny, about 1775

There had been many fights over “driving negroes” before, but it was the accidental election of Abraham Lincoln that triggered the revolt. It was “accidental” because Lincoln was a Republican running against a northern Democrat and a southern Democrat, so, the presidency was, in a sense, handed to him. This would in hindsight appear to be a type of higher power intervention, providing just the man to preserve the Union at just the right time.

Once the North stood triumphant in the War, the man who had done most to preserve the Union wanted to ease the rebellious South back in as gently as possible, but many Northerners yearned to punish it. (With some wisdom, Dr. Johnson had written that a rebellion should not go unpunished, lest future rebellions be encouraged.) For example, after Andrew Johnson succeeded Lincoln, General James Longstreet, valiant assistant of General Lee in the Confederate Army of Northern Virginia, came, via the recommendation of General Grant, to President Johnson for a pardon. President Johnson cordially received him, according to Longstreet’s autobiography, but said Longstreet was one of three—Lee and Davis the other two—who had most harmed the Union and could never get amnesty.

The North’s first war goal was preserving the Union, and emancipation of the slaves soon became the second. Equality of all citizens before the law became a third war aim for “the more radical” Republicans like Charles Sumner and Thaddeus Stevens. They thought that black freedom would be a sham unless “the government guaranteed the civil and political rights of the freedmen.” Encyclopedia Britannica 1984, History of US, vol 18, p 971. This history is about 58 pages, 1418 – 1981 The Radical Republicans were in control of Congress after the war, and that led to the Equal Protection Clause.

The South made it easy for vindictive northern Congressmen to come up with measures of punishment. The War had hardly ended when southern Whites began writing laws that denied the Negro full citizenship; the so-called Black Codes either denied blacks’ right to contract or imposed harsher criminal penalties on “niggers” than on whites for the same offenses. One version stopped ex-slaves from earning a living in any way but farming. Congress decided it had to “reconstruct” the South, and part of Reconstruction was amending the Constitution to protect the new black citizens.   The "Civil War" Amendments, numbers 13, 14, and 15, played this role, with the Fourteenth Amendment requiring the states to gives all citizens equal protection under the law.  It was a logical part of what was supposed to be an American democracy "under law" rather than under human whims, but the whites in the ex-Confederacy hated it.  Those niggers were not their equals and they didn't care what the law said to the contrary.

More, then, on equal protection under the law, and on Constitutional law and American freedom generally, on the next post.  John Adams and his fellows gave us a very large gift of freedom, and it will take a while to cover even most of equal protection under the law.  Broad concept, but just the kind of expansive thinking at which Adams excelled.
For now I'll just note that John Adams wrote the state constitution of Massachusetts mostly all alone.  'Twas him that made it the "Commonwealth of Massachusetts."  Per David McCullough, he also was apparently the first to put into practice in a constitution, in a government, the idea of the courts being their own separate branch, rather than part of the executive branch.  It is good to have them as independent as possible.  Thank you, John Adams, for your gift, the gift of American democracy that is still giving to so many of us.  We know you had the help of many hands, and we seek to carry on your work.