2.4 Analysis of the Equal Protection Clause
Equal Protection Clause of the 14th Amendment
The Equal Protection Clause is one of the most litigated and significant provisions in contemporary constitutional law. The meaning of the clause is bound up with the entire drama of the Civil War and Reconstruction and, in particular, with slavery and emancipation. Thus the Equal Protection Clause can be understood only as an organic part of the Fourteenth Amendment and in the broader context of all the Reconstruction amendments.
Considered textually, the Privileges or Immunities Clause, the Equal Protection Clause, and the Due Process Clause of the Fourteenth Amendment can be read to form a coherent triad. A state's legislature could not deny to any citizen within its jurisdiction any privilege or immunity (however defined). Once a law was validly passed, the state or its agents could not arbitrarily enforce it against any person within the state's jurisdiction without violating the Equal Protection Clause. Finally, every person accused of violating a law would enjoy the full panoply of procedural rights before the courts of the state. However, early Court involvement, such as in the Slaughter-House Cases (1873), as well as the ambiguity of much of the congressional debates, has led to debate and disagreement as to the original understanding of the three clauses.
Debate on the original understanding of the Equal Protection Clause became intense in modern times after the Supreme Court ordered briefing and reargument on the question in Brown v. Board of Education (1954), the school desegregation case. Scholarly debate on the original intention of the Equal Protection Clause and, more broadly, on Section 1 of the Fourteenth Amendment, continues to the present day.
Controversy centers on two primary questions:
The first is how far, or in relationship to what rights, did the framers intend the command of equality to apply? In other words, equal as to what?
The second is what does it mean to treat persons equally? In other words, what is equal treatment?
A complete analysis of the Equal Protection Clause may be found at: