Equal Protection, the Fourteenth Amendment's Quiet Revolution

Some of the most powerful sentences in American law are also the shortest. Here is one, from the Fourteenth Amendment, ratified on July 9, 1868. A state shall not "deny to any person within its jurisdiction the equal protection of the laws."

Sixteen words. They are easy to read past. But more landmark decisions, more of the country's progress toward its own stated ideals, rest on those sixteen words than on almost any other clause written after the founding. This essay is a close reading of them, because nearly every word in the sentence is doing deliberate, heavy work, and the work is worth seeing.

Start with the situation that produced it.

The Civil War had ended. Slavery had been abolished by the Thirteenth Amendment. But in the defeated Southern states, new governments were passing laws, the so-called Black Codes, designed to keep the newly freed population in a condition as close to bondage as the law could manage. These codes restricted where Black Americans could go, what work they could do, what rights they could claim. The states were, in plain terms, writing inequality directly into their statute books.

The framers of the Fourteenth Amendment, the Reconstruction Congress, looked at that and understood the problem precisely. The danger to equal rights was not only mob violence. It was law itself. A state legislature could draft discrimination into ordinary statutes and then enforce it with the full machinery of government. The equal protection clause was written to forbid exactly that. It was aimed at the lawmaking power of the states.

Now take the clause slowly, because the precision is the point.

"No state shall deny." The clause is a restriction on the states. This is a genuine turn in American constitutional history. The original Bill of Rights, as we have seen in another essay, restrained mainly the federal government. The equal protection clause does the opposite. It reaches into the states and binds them. After 1868, a state government's own laws could be measured against a federal constitutional standard of equality, and struck down if they failed it. That shift, federal protection against state action, is one of the most consequential the Constitution has ever made.

"To any person." Not to any citizen. To any person. This word was chosen, and the choice is enormous. The protection does not depend on citizenship. It does not depend on being born here, or naturalized, or enfranchised. It attaches to a person, to a human being within the state's reach. The framers could have written "citizen." The same amendment uses that narrower word elsewhere. In the equal protection clause, they did not. They wrote "person," and courts have taken the word at its full width ever since.

"Within its jurisdiction." This fixes the reach. A state owes equal protection to the people within its borders, within the area where its laws operate. If the state's power touches you, this guarantee touches the state.

"The equal protection of the laws." Here is the heart of it, and it repays careful attention. The clause does not promise that life will be equal. It does not promise equal wealth, or equal outcomes, or equal treatment by every private person. It promises something more specific and more enforceable: the equal protection of the laws. The laws themselves, and the protection they provide, must apply equally. The state may not give the shelter of its laws to some people and withhold it from others. Whatever the law protects, it must protect for everyone within the jurisdiction, on equal terms.

Here the honest essay has to tell the harder part of the story.

A clause is only words until it is enforced, and for a long time the equal protection clause was not. Reconstruction ended in 1877. The federal will to enforce equality in the South collapsed. And in 1896, in Plessy v. Ferguson, the Supreme Court itself read the clause down almost to nothing, holding that "separate but equal" facilities satisfied it, a reading that let legalized segregation stand for another half century. For decades, the sixteen words sat in the Constitution while the country failed to honor them.

But the words did not change, and that turned out to matter. The clause was still there, still binding the states, still promising the equal protection of the laws to every person. It was a slow fuse, and it had been lit in 1868.

In the twentieth century the country reached back for it. In 1954, in Brown v. Board of Education, the Supreme Court used the equal protection clause to overturn Plessy and declare segregated public schools unconstitutional. The same clause became the constitutional ground for striking down bans on interracial marriage, for challenging discrimination of many kinds, for a long line of cases extending the law's equal protection to people it had long been denied to. The sixteen words written against the Black Codes of 1866 became, a century later, the engine of the country's slow movement toward its own promises.

The equal protection clause is sometimes called the Constitution's second founding, and the name is earned. The first founding declared that all men are created equal and then built a government that, in practice, protected that equality very unevenly and for very few. The Fourteenth Amendment went back into the document and wrote the principle in as enforceable law, binding on every state, owed to every person.

Here is what the close reading leaves us with. The clause did not make the country equal in 1868. It did not make it equal in 1896, when the Court gutted it, or in the long decades after. What it did was put the standard permanently into the supreme law, in words precise enough and broad enough to be reached for whenever the country was ready to honor them. "Any person." "The equal protection of the laws." Those words were a promise the country wrote to itself and then, for a long time, broke. The work of a citizen, in part, is to know the promise is there, in the text, sixteen words long, still binding, still waiting, and to keep insisting that the country be measured against it.