What Does It Mean to Have Equal Protection of the Laws?
"All men are created equal," states the Declaration of Independence. As a nation, we have spent more than two centuries trying to live up to the truths set forth in the Declaration. Our challenge seems to be that we talk a lot about equality but don’t always agree on what the word means.
While the Declaration represents the power of our nation’s ideals, it is the Fourteenth Amendment to the U.S. Constitution, added 80 years after the Constitution was adopted, that provides the legal basis for our evolving ideas of equality and fairness.
This activity is designed to help students look at what equality has meant in the past and consider how courts apply the concept of "equal protection of the law."
(Links for accompanying handouts are at the bottom of this page.)
- To analyze the historical meaning of the equal protection clause of the Fourteenth Amendment and how it is used today.
- To analyze the legal meaning of "equal protection of the law" by examining case studies.
Procedures: The Historical Background
1. Ask students if all men were equal before the Civil War. What was the main legally recognized inequality? (Slavery) What were some others? (Women could not vote, serve on juries, sometimes even hold property; sometimes even white males could not vote if they did not own a certain amount of property.)
2. Pass out the handout which follows and ask students to look at the words at the top of the page from the Fourteenth Amendment. Ask: Why did the writers of the Fourteenth Amendment include these words? (Prohibited state laws abridging the rights of citizens; tried to guarantee that states could not deprive anyone of "life, liberty, or property" without fair procedures ["due process of law"]; guaranteed that the law would protect people equally.)
3. Explain that in the historical context, Congress was concerned that southern states, once readmitted to the Union, would re-establish a fundamentally unfair legal system -- like that which existed before slavery -- in which the newly freed slaves would have no legal rights and no protections in court.
4. However, the amendment was not designed only for the newly freed slaves, since it refers to "persons." It has been applied to corporations (persons under the law) and actual people who are not citizens, as well as to American citizens.
Procedures: Applying the Amendment
5. Does the Fourteenth Amendment require that everyone be treated identically? (No, explain that many laws "discriminate" by treating some groups of people differently than others. Give some examples of laws that "discriminate" acceptably (preventing 10 year-olds from getting a drivers license). Ask students for other examples (different tax rates for different levels of income, etc.)
6. If "equal" is not the same as "identical," what is it exactly? Let’s look at some rules or laws that involve making distinctions among people.
7. Ask students to discuss the first situation on the handout. Probably there will be many opinions and arguments pro and con; fairness will come up, as will stereotyping by gender. Let the discussion go for a short while, but at some point rein it in. Explain that lots of criteria are in play, and many valid opinions are being expressed. However, when courts consider such matters, they must have standards to guide decision. Explain why courts develop and apply such standards. Then go over with students how a court would (and did) approach this issue. For example, you might explain how precedent helps courts identify the principles they should apply in deciding the cases before them. Explain that if courts did not have to look to past decisions in deciding which principles to apply, people would have no assurance that like cases would be decided in a like manner.
8. Before deciding whether a law that treats different classes of people differently violates the equal protection clause, a court must determine which constitutional test to apply: the "strict scrutiny" test; the intermediate, "substantial relationship" test; or the "rational basis" test. Write those three terms on the board.
9. Explain that each test requires the court to ask and answer a different question.
a. Strict scrutiny: Is the law narrowly tailored to be the least restrictive means of accomplishing a "compelling" government interest?
b. Intermediate scrutiny: Is the law substantially related to an "important" government interest?
c. Rational basis: Is the law reasonably related to a "legitimate" government interest?
10. Explain that while judges themselves often disagree on which test to use in any given case, most agree that the following criteria are determinative:
a. Strict scrutiny -- Used in cases involving racial minorities or "fundamental interests" that are spelled out in the Constitution.
b. Intermediate scrutiny -- Used in cases involving gender discrimination.
c. Rational basis -- Used in cases involving any classifications that do not warrant strict or intermediate scrutiny.
11. Ask the students which test they think should be applied in the case you are discussing and why. Explain the importance of selecting the right test. It is very difficult to uphold a law once it is subjected to "strict scrutiny" and very difficult to strike it down if it is only subject to "rational basis" review.
12. Don't worry if you can't get into more than one of these situations. Perhaps the students can consider them in subsequent classes.
13. End with some discussion questions:
- What is the status of equality now?
- What would you want it to be?
- What debates about equality do you see in the future?