As a result, anyone who proposes a unifying theory of the Constitution must either provide a “Brown exception” or explain why, of course, the Equal Protection Clause, despite its terms, does not tolerate “separate but equal.” Originalists, for example, need to explain why Brown was right (at least in result) despite the fact that at the time of its passage the Equal Protection Clause was not understood to prohibit segregation. Advocates of judicial restraint—that is, those fearful of judicial overreaching and policy making—also need to explain why Brown, which sometimes led to decades of intense judicial supervision of school integration efforts, presented a unique context where judicial activism should be embraced rather than feared.
Progressive advocates of a “Living Constitution,” however, are also not spared the explanatory burdens that Brown requires. They, too, must have a theory that begins “if Brown, then. . . .” Brown itself based its conclusion about the inherent inequality of segregated schools on contestable social science concerning racial stigma and the psychology of school children. Does the meaning of the Equal Protection Clause turn on best available social science? Brown also emphasized the uniqueness of public education—both as an interpretative matter given the quite different character of public schools at the time of the drafting of the Equal Protection Clause and as a practical point to suggest that children and public education might present different dangers of stigma than segregation of adults in other arenas of public accommodation. Can the principle of Brown be so cabined—not just to public schools but even to race? And if the Equal Protection Clause becomes untied from the history of slavery and the Civil War that motivated its passage, is there no stopping point (or controlling principle) to judicial social engineering in the name of a term so amorphous as “equality”?
Indeed, here is where we find ourselves in the debate over Equal Protection 60 years after Brown: To whom is the Constitution’s obligation of equal treatment owed? Because law by its nature discriminates (consider the tax code, for example), in that it treats groups differently, which groups deserve the right to object when they suffer unique impacts? No one now doubts the special claim that racial minorities have under the clause. Nor do most casual or expert observers see an equivalent claim that should be lodged, for example, by opticians when the law treats them differently than optometrists (See Williamson v. Lee Optical Co., 348 U.S. 483 (1955)). But in between those two extremes, the debate is complicated and ever-changing.
Although the beginning of modern Equal Protection might be easy to identify, an end point is not. (In fairness, perhaps the same could be said for most clauses of the Constitution.) The trajectory of Equal Protection jurisprudence points toward an ever-expanding universe of groups with constitutional claims for “heightened scrutiny” against laws that intentionally discriminate against them. The “story” of Equal Protection since Brown is one where doctrinal and litigation approaches developed to handle the special case of African Americans have expanded to include other racial minorities, women, and now, imminently, gays and lesbians.
From Class to Classification
Even that description of the doctrinal development, though, does not quite capture one of the important and often overlooked dynamics at work in modern Equal Protection. For the U.S. Supreme Court has done more than simply incorporate groups, moving along some continuum of perceived disadvantage or history of discrimination. Instead, it has refocused analysis under the clause to focus on suspect classifications, rather than suspect classes. Whereas a “class-based” approach would reserve heightened Equal Protection scrutiny for certain groups, such as African Americans or women, a focus on classifications considers, for example, race and gender as inherently suspicious categories for government allocations of costs and benefits. The class approach views Equal Protection as protecting identifiable groups; the classification approach focuses on the bases for discrimination.
This seemingly semantic difference can make all the practical difference in the world. Affirmative action provides the most glaring example. Those who view the Equal Protection Clause primarily in terms of its anti-subordination purpose—that is, to protect historically disadvantaged and powerless groups from more privileged and powerful ones—would not treat discrimination against whites the same as discrimination against African Americans. On the other hand, those who read into the Equal Protection Clause a rule of colorblindness consider any racial classification—regardless of the race of the plaintiff—to be inherently suspect and only justifiable by the most important rationales.
To a large extent the classification-based approach has won out. Although the Court has left open the door for some forms of affirmative action, given the importance of promoting diversity and targeted compensation for past discrimination, it has reiterated the rule that the constitutional standard should not vary based on the racial group benefited or burdened by the classification. And while this approach is often seen as the conservative approach to Equal Protection, it was none other than Ruth Bader Ginsburg, as a lawyer for the Women’s Rights Project at the American Civil Liberties Union (ACLU), who strategically brought cases to the Court on behalf of men to highlight the irrationality of gender-based classifications. Nevertheless, from time to time, and perhaps especially in recent years, we also see the Court’s concern for certain classes of people peeking through. The concerns that the Court has expressed for children of illegal immigrants, people with disabilities, or for gays and lesbians have arisen from particular concerns about laws imposing unique and irrational costs on discrete groups of people.
Operationalizing Equal Protection
This preference for classifications over classes is characteristic of a set of similar judgments in which the Court operationalizes its interpretation of the Equal Protection Clause. (Professor Mitchell Berman of the University of Pennsylvania School of Law describes these as “constitutional decision rules.”) The now well accepted approach to limit Equal Protection to intentional discrimination is of a similar type. Nothing in the wording of the Equal Protection Clause would suggest such a limit. The Court could have gone in a very different direction in a series of cases in the 1970s and developed rules for prohibited discrimination that did not rely, in effect, on reading the minds of decision makers responsible for discriminatory state action. Indeed, Congress went in such a direction when it enacted and then amended Title VII of the Civil Rights Act to establish a system of burden shifting when certain policies have a discriminatory impact, regardless of purpose.
The same could be said with regard to the “tiers of scrutiny” that every introductory Constitutional Law student learns and that the Court has developed, by necessity if without textual or originalist support, as a way of distinguishing discrimination claims according to their seriousness. When students first confront this regime, they often view the constitutional game as one where the goal is to push one’s favored groups up the tiers of scrutiny until they “arrive” at the gold standard—strict scrutiny—in which such classifications can only be justified by compelling state interests and with means that are narrowly tailored to achieve those interests. Groups “at the bottom,” for whom rational basis review only requires legitimate state justifications and rationally related means, are seen as losing out, while those in the middle, requiring intermediate scrutiny (requiring means “substantially related” to “important” governmental interests), are considered in purgatory, waiting to be called up to the big leagues.
At a certain point in such a course, students hold their head in their hands, exasperated to learn that Equal Protection inquiries cannot be divided into three formulas with predicable outcomes. The categories start disintegrating as students consider the possibility that while race-based discrimination requires strict scrutiny, which is notoriously “strict in theory and fatal in fact” (as Stanford Law School Professor Gerald Gunther put it), affirmative action seems to require something like “strict scrutiny minus.” And while the Court has said it was applying rational basis review in the context of discrimination against gays and lesbians or people with disabilities—thereby treating such laws, deferentially, just as it would discrimination against opticians—the suspiciousness of the motives behind such laws leads to something like “rationality with bite.” And when it comes to gender discrimination, occupying as it does the netherworld of intermediate scrutiny, each modern case seems to students like an effort to analogize gender to race but without formally placing them in the same “tier.”
Some students then resign themselves to the “it’s all political” or “whatever the judge ate for breakfast” approach to Equal Protection. What I try to teach them is that Constitutional Law is, in fact and to their surprise, a species of law. As such, the precedents and history from the founding to the present are tools to be used to develop the law even further. The Equal Protection case law illustrates that fact more than almost any other area of “constitutional common law.” Each seeming innovation to grant a group full and equal citizenship feeds into arguments from others—“if them, why not us?”—with the limits determined more by the pace of evolution in society’s views about what is fair as by new insights that lawyers and judges have about the words on the Constitution’s page.
The Evolution of Voting Rights
This evolution and concomitant change of Equal Protection’s meaning goes even further than a listing of protected groups, however; it extends to rights as well. In the area of law in which I specialize—voting rights and election law—the changing meaning of Equal Protection could not be more important. We rightly think of Equal Protection as the clause in the 14th Amendment primarily concerned about discrimination, whereas the Due Process Clause (of Roe v. Wade fame) is the fount of rights—some specified, others implicit or “penumbral”—against the states. But virtually all constitutional voting rights litigation occurs under the Equal Protection Clause, in what has now been established as the “fundamental rights prong,” as opposed to the “suspect classification prong,” of Equal Protection.
The judicial creation of the right to vote in the Equal Protection Clause illustrates the mechanisms of contemporary constitutional change perhaps better than any other context. Most are surprised to learn that no right to vote exists in the U.S. Constitution, unlike the constitutions of most other democracies. Indeed, the absence of a generalized right to vote could not be more clearly demonstrated by the Constitution’s text, which was amended six times concerning voting. The prohibitions of race and gender discrimination in voting in the 15th and 19th Amendments, for example, were necessary because the 14th Amendment does not contain a generalized right to vote. Indeed, the relatively high rate of amendments to deal with issues of the political process, as opposed to other areas of public policy, stands as the best advertisement for the intended process for constitutional change appearing in civics textbooks. The explicit amendments that protect against discrimination in voting rights with respect to race, sex, the poor (through the 24th Amendment’s abolition of poll taxes in federal election), and age for those as young as 18 (in the 26th Amendment) are constitutional anomalies. We have become much more accustomed to constitutional change through the courts, as opposed to that through the cumbersome process of proposals and ratification of amendments by democratically accountable branches of government.
Those amendments indicate widespread agreement as to both the original and, at least until the 1960s, historical understanding of the Equal Protection Clause: It did not guarantee the right to vote. The country would need to add words to the Constitution, not reinterpret old ones, if it wished to prevent states from limiting the right to vote to select classes of people. Nevertheless, in a series of Warren Court–era cases the Court read into the Equal Protection Clause a more generalized prohibition against discrimination with respect to the right to vote, admitting quite openly in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), for example, that “the Equal Protection Clause is not shackled to the political theory of a particular era.” This logic extended not merely to historically suspect classes, or even to classes (such as the poor) on the frontier of Equal Protection, but went so far as to guarantee the right to vote of a 31-year-old, single stockbroker who lived with his parents but wanted to vote in school board elections that restricted participation only to property owners and parents of school children (See Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969)).
Not only did this constitutional protection extend to the mere act of voting, but it began to include the power of one’s vote as well. In the “one-person, one-vote” cases, the Court did an extraordinary and ambitious thing: Despite the absence of a suspect class or classification in such cases, it nevertheless found that legislative districts with radically different numbers of people in them violated Equal Protection. It issued such a ruling despite the fact that widespread malapportionment of districts existed from the time of the 14th Amendment’s passage up to the very day the Court handed down its decision. Nothing in the minds of those who crafted the Equal Protection Clause or those who designed the redistricting plans for every state at the time indicated that the Constitution prohibited districts of unequal size. Indeed, the existence of the U.S. Senate, with equal representation by state regardless of population size, seems to give a constitutional blessing to representation on a basis other than one person, one vote.
What was at stake for the Court in the one-person, one-vote cases was more than some abstract anti-discrimination norm. Rather, those cases highlight better than any others the function of the Equal Protection Clause in promoting a healthy democracy. As the Founders recognized, democracies are always at risk of succumbing either to majoritarian tyranny or self-interested manipulation of the electoral process by insiders against outsiders. The Equal Protection Clause, because it has been read, naturally, to protect “discrete and insular” minorities, prevents the majority from exacting costs on powerless minorities that the majority would be unwilling to bear itself. Similarly, by reading the Equal Protection Clause to require equality in voting rights, the Court has helped protect (admittedly with mixed success) outsiders from the moves of self-interested incumbents intended to prevent their replacement—what John Hart Ely described in Democracy and Distrust (1980) as “clearing the channels of political change.”
In his memoirs, Chief Justice Earl Warren described the one-person, one-vote cases as the most important cases handed down by his Court. Given the place of Brown v. Board of Education in the constitutional firmament, this conclusion might have seemed peculiar. But Warren thought that if the Court could ensure political equality, then social and economic equality would follow. The Court’s lack of democratic accountability and life tenure for the Justices, usually viewed as institutional drawbacks, would be critical when it came to policing the political process. All representative institutions of government, such as Congress or state legislatures, had a conflict of interest when it came to dealing with laws that might affect the fate of their own membership.
The Pace of Change
As we acknowledge the anniversary of Brown v. Board of Education, we should also recognize the anniversary of an equally significant case handed down ten years earlier. While this year marks 60 years of court-ordered school desegregation, it also marks 70 years since the Court upheld the internment of Japanese Americans in Korematsu v. United States, 323 U.S. 214 (1944). This case is now widely regarded, along with Plessy v. Ferguson, 163 U.S. 537 (1896), and Dred Scott v. Sandford, 60 U.S. 393 (1857), as part of the “anti-canon” of constitutional law—much reviled and discredited cases that are cited only as warnings and never with approval. In just ten years’ time, the Court moved from condoning widespread race-based deprivations of civil liberties to forcing school integration to avert the stigmatizing effect of segregation on African American schoolchildren. Perhaps ironically, the seeds of extreme constitutional skepticism for racial discrimination were sown in Korematsu, which established “strict scrutiny” for racial classifications, even while letting one of the nation’s most grievous race-based wrongs slip through.
Nevertheless, this pair of anniversaries highlights—with relevance to our own time—how quickly constitutional change can occur. As the Supreme Court appears poised to take the next step in the march of Equal Protection with the impending same-sex marriage cases, we should pause to recognize how utterly unthinkable the concept of marriage equality seemed just 15 years ago. In many ways, this rapid revolution in attitudes and accompanying plausibility of interpretations of the Constitution seems unprecedented. At the same time, the history of Equal Protection case law is filled with fits and starts, as well as with long-term social movements that find their expression in constitutional change. Although the unpredictable future definition of “Equal Protection of the Laws” will be declared by judges and lawyers, the meaning of that constitutional phrase will be determined as much by ordinary citizens outside the courthouse, whose notions of equality and fairness are shaped by all the same forces that shape history itself.