vii Introduction Equality under the law is an important principle in the American legal system. Many trace it to the Declaration of Independence’s historic language— “that all men are created equal.” Sadly, this lofty language excluded women and minority races. The American Constitution even sanctioned slavery with the three-fifths and fugitive slave clauses. This caused famed abolitionist William Lloyd Garrison to refer to the Constitution as a “covenant with death” and “an agreement with Hell.” After the U.S. Civil War, the so-called “Radi- cal Republicans” in the 39th Congress recognized the need to established a system that would protect those who had recently been released from slavery. They passed the three Reconstruction Amend- ments. The Thirteenth Amendment outlawed slavery and involuntary servitude, the Fourteenth Amendment gave former slaves freedoms possessed by free men, and the Fifteenth Amendment pro- hibited discrimination in voting on the basis of race. The key part of the Fourteenth Amendment that breathes life into the concept of equality is the equal protection clause, found in section 1 of the Fourteenth Amendment. It provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Unfortunately, the U.S. Supreme Court in the 19th century did not interpret the equal protection clause in a way that provided racial equality. For example, in the Civil Rights Cases (1883)—a case decoded in this book—the Supreme Court limited the equal protection clause as providing individ- ual protection only from invasion by governmen- tal, not private, actors. Then, in Plessy v. Ferguson (1896), the court upheld a segregation law in Loui- siana based on the concept known as “separate but equal.” Under this noxious doctrine, there could be separate accommodations based on race, as long as the facilities were somewhat equal. The equal protection clause was not considered a vital part of the Constitution for many years. Jus- tice Oliver Wendell Holmes famously referred to it in Buck v. Bell (1927) as a “constitutional argu- ment of last resorts.” This changed dramatically through the years, particularly after the U.S. Supreme Court began to more carefully scrutinize laws that impacted individual rights. In famous “Footnote Four” in United States v. Carolene Products (1938), the court wrote that laws prejudicing people on the basis of race “may call for a correspondingly more search- ing judicial inquiry.” Through the years, the court established different standards for reviewing laws that treat people differ- ently or treat classes of people differently. If a law treats a person differently because of race or national origin, the law is subjected to the highest form of judi- cial review, known as “strict scrutiny.” If a law treats a person differently because of gender or illegitimacy, then the law is subject to what is known as “interme- diate scrutiny” or “heightened scrutiny.” Under these standards, the government bears the burden of justi- fying its law that treats people differently. However, the vast majority of laws creating clas- sifications do not involve race or gender. These laws are presumed constitutional. The person challeng- ing the law has the burden of showing that these laws are arbitrary and unreasonable. This standard of review is known as “rational basis.” These standards of review are important to understanding the equal protection clause. But, the equal protection clause is best learned by delving directly into the sources that discuss its principles. That is the beauty of the Documents Decoded series.
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