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Constitutional Equality
University of Michigan School of Law
Schlanger, Margo Jane

Constitutinal Equality

Professor Margo Schlanger

Winter 2011

Equal Protections clause of the 13th Amendment And Due process of 14th amendment

No State shall deny to any person in its jurisdiction the equal protection of the laws

vague and ambiguous but the court decided the following cases based on this law and in every case the court decided in a way that went beyond the original understanding-based on what interpretative methodology interpreting vague and ambiguous text toward reaching specific and controversial decisions?

No state shall deny any person life, liberty, or property without due process of law.

also vague and ambiguous seems only concerned with procedures, but the courts have determined that it places limits on the substantive policies. Griswold v. CT 1962 held that unconstitutional the state law which prohibited married couples form using contraceptives. Roe v. Wade termination of pregnancy

Lawrence v. TX substantially limiting state discretion in deterring sexual conduct ob/w people of the same gender. Again going beyond the original understanding and deciding controversial public policy through interpreting constitutional meaning. How can the court get from this ambiguous text to Roe v. Wade, given that the original understanding did not contemplate the kinds of prohibitions that he court deemed constitutionally mandated.

Plessy v. Ferguson states act permissibly in segregating public facilities b.c of race.

Brown v. Board of Educ. States act impermissibly

States act impermissibly in criminalizing interracial marriage 1967

Board of Regents v. Bakke: State is severely restricted in its discretion to use racial classification in remedial purposes

X v. V: states act impermissibly in operating gender specific professional schools

Romers v. Evans 1992: States act impermissibly when discriminating broadly b/c of sexual orientation.


13-15th amendments became part of the const. in the aftermath of the civil war (1961-5), the response by the northern republicans to the Southern movement to continue slavery in substance though not in name. The 13th was created in 1866 and the 15th was created in 1876

To understand the basis with respect to how the 14th amendment was created in 1868 we must better understand slavery and the society that tolerated and created slavery.

The Original Constitution’s policies on Slavery:

1787 Const had several provisions that protected the institution of slavery.

Art. I § 9 para 1: the importation of persons. Importation of persons not prohibited prior to 1808 & congress could impose a tax on each person. Slavery & its expansion was contemplated by the framers.

3/5th Clause Art I § 2 Para 3: Population proportional principle-begs the question how do you determine the population of a state to determine its number of representers, etc. Those enslaved counted as 3/5 of a person. Ironically, those in the South wanted slaves to be considered as whole people so that they would have more representatives in the congress.

Slave Clause: Art. 4 § 2 para 3: If one who was enslaved managed to escape to a free state did not prevent the slave from being subjected to the property rights of the owners.

Internal Conflict of Values: Slavery be protected but “all men be created equal”

The Slave Clauses were supposed to carry forward into the new union and are a function of the fact that the south defended slavery and the north tolerated it as a requirement for the creation of the US.

Foundational public documents such as the declaration of the independence which serve as support for slavery contain values such as all men are created equal. 5th amend. life and liberty cannot be deprived without due process, also included property protection. The people who asserted that claim and right of creating the US, had a view of who qualified as part of those people, which excluded those that had been imported as slaves and their descendants.

These attitudes at the founding are important b/c we need to understand the attitudes at the ratification of the 13th and 14th amendment. (the textual basis of all the cases we read this semester)

Dred Scott v. Sanford

Facts: He claimed to be free b/c his prior owner had taken him to a free state. He asserts subject matter jurisdiction b/c he claims to have been a citizen of Missouri.

The court reasons that there cannot be diversity citizenship if П and ∆ are from different states. The court considers whether Dred is a citizen of a state. Is he a citizen as referred to in Art. III?

pg 477 see pink highlights: No b/c “we the people” determine who are citizens. Slaves were not included as part of the sovereign people…were not intended to be included in the people that were referred to in the Declaration of Independence.

Taney’s Opinion: uses original understanding in considering: who counted as part of the people and why and who was excluded and why? What is his view as to what the people deemed as part of “the people” and why ?

Why is he using original understanding? Is the original understanding the appropriate methodology 70 years after the founding?

478: When he says that it’s not the judges job to determine policy he echoes Hamilton 78, b/c judges should not impose will only judgment.

The words of this opinion are a sanitized version of how the views were set in society—this was an ideology that permeated public and private life. it governed the way that people interacted with each other in day to day. Even if this is the correct original understanding ought this to be the properly employed method of interpretation.

The South seeks to secede from the union in part b/c of concerns the slavery was becoming vulnerable, and the North was playing a role. The South sought to separate from the North to limit them from controlling the laws of the south. The south wants to reassert autonomy and control.


13th Amend: The only reference to slavery by name in the constitution. § 1. State legislatures (southern) passed statutes that were designed to perpetuate the design of slavery even if it was abolished in name.

Slave Codes replaced by “Black” Codes This is about the framing of the 14th amend, and delves into the question of whether those intended to really prohibit slavery with it’s inception.

The Slave Codes, which placed laws that exclude people from occupations, prohibited education of slaves. The black codes impose the same restrictions.

Efforts of formerly freed men and women to establish new lives and institutes and the efforts of the while southern power structure to perpetuate the institutions they fought to protect (KKK). This is what Taney was talking about in Dred Scott 479 attitudes of injustice with daily interaction

Trumball and Stevens decided we need to do something about this, the 13th amend is not enough. We need to restrict states from perpetuating slavery in substance though not in name.

So North says, we ratified 13th amend., we won war and look what is still going one. We can’t have military in South forever. What can we do? pg 424

This is a large part of the notion that the 14th amend. was necessary…what happens when the south is reintegrated? In particular it’s equal protection clause.


what was the requirement of the states with regard to the equal protection of the laws?

what protections were created?

what kinds of discriminations were prohibited?

what was the response on the part of the defeated white power structure beyond the abolition and loss of the war?

Plessy v. Ferguson, 1896:

a window of original understanding into the political community at the time.

The court looks back at the purpose of the 14th amend. ratified in 1868, just in the aftermath of the civil war and consider the original understanding b/c racially separate but equal accommodations for RR passengers.

The significant part of Plessy’s argument is that the law is unconst’l based on the equal protection clause and raises the issue:

Is this racial discrimination b/w whites and non-whites prohibited by the 14th amend. In particular its prohibition against states to provide equal laws?

J. Brown says: this is not unconstitutional b/c the original intent of the 14th amendment did not contemplate states prohibiting these laws. In fact, the equal protection clause contemplated that states could continue to discriminate in this way. Many agree that the clause’s original understanding did allow states to continue to segregate based on race.

pg 11 Bickel discusses the EPC and indicates as part of the background that cong. passed the civil rights act of 1866 (A response to the enactment of black codes to replace slave codes). An Act that prohibited racial discrimination in certain situations [discreet] contexts and only these contexts], for instance in the creation of contracts, right to sue, right to be a witness in a suit, real estate, criminal law. In these contexts, state could not discriminate b/c of race.

Was this act of 1866 constitutional?

Why would ppl be concerned about it?

infringes on state sovereignty, traditionally state police powers

congress is a limited enumeration of powers and may act only with those power vested by the constitution

ppl ask by what power did congress authorize this act?

arguably section 2 of the 13th amend (formally abolishes slavery)

this lead many to believe that cong needed to be clearly vested with policy making discretion in the realm of racial discrimination §5 of 14th amend.

what congress enacts, congress can repeal and once the southern states become re-integrated into congress, deals may be made and the occasion may arise when congress would repeal certain provisions.

This is all consistent with the attitude in Foner 424-what happens to the policy we sought to est. once the south comes back…. this leads to section 1 of 14th amend. Congress can’t appeal it e

ons: race correlates with behavior, an assumption that all ppl of Japanese ancestry will commit espionage pg 670 which is impermissible

J Murphy does not deny the proposition that if a policy was adopted b /c of racial value judgment…he goes beyond and names another governmental purpose that renders it impermissible….rooted in racial stereotyping (the assumption that race correlates with fact [commission of acts of sabotage]. the challenge policy manifested to him the sense of having been adopted not by antagonism, but instead by assumptions and that lay at the basis of their choice of means. This tainted the way they sought to achieve an otherwise constitutional purpose [to prevent espionage]

Main Legal Principles

J. BLACKàIF a law that curtails civil rights through racial classification was rooted in racial antagonism then it is unconstitutional.

J. Black also said and Murphy agreed that: any law containing racial classification are viewed with suspicion and subject to the most rigid scrutiny.

MURPHY’S PRINCIPLEà If a law containing racial classification curtailing civil rights is rooted in racial stereotyping it cannot justify racial classification or if a law that curtails [step beyond J. Black]

How do these principles relate to each other?

they related to each other through substantive constitutional principle the one hand limits on governmental discretion derived from and underlying constl text

whether a governmental applies

J Black‘s application to the facts of Korematsu:

Did he seem to follow through with a result that was warranted by the rules he set forth?

In Black’s view, the exclusion order was not rooted in racial antagonism but by bonafide military necessary.

Issue of fact relevant under permissibility

Military says we adopted it b/c of necessity

challenger: Korematsu’s version military used it b/c of racial antagonism

What fact did J. Black find that made him decide that the exclusion was permissible?

the government stated facts…we can’t conduct individualized hearings, but there is not proof…does Black reach the conclusion with the posture of suspicion that he says attaches to all racial classification?

If you were Korematsu’s attorney what would you say to J. Black?

if you wanted to sharpen Black’s focus on the presumption of unconstitutionality what points and observations would you make toward capitalizing on his own proposition? How do you take advantage? :

requiring a basis for believing that ppl of Japanese (or any) origin have been disloyal

pg 670 footnote #4: Murphy points to the fact that in Brit. individual hearings were held to determine the loyalty of 75,000 Austrian and German ppl. British government was just as concerned with sabotage as the US is with it.

Government’s response could be: we could do it but we still wouldn’t have reliable judgments.

More questions will reveal that the government would be unable to rebut the presumption of unconstitutionality. However, this is only if we start with SUSPICION.

Individualized hearings at some point, not necessarily at the beginning, in fact why didn’t the government exclude the ppl who you were concerned about

how does this help you with the purpose you seek to serve –preventing sabotage?

if you are excluding ppl who are not spies then you are not reaching your asserted purpose

the conception of under-inclusiveness: how would you reinforce suspicion?

England had a similar problem and froze the populations with the same exclusion but followed it up with individualized hearings

why not detain Italians too? they’re with Germany.

the point is to RAISE QUESTIONS TO REINFORCE SUSPICION, b/c you put the burden on the government

[1] Stating a purpose requires a verb “congress has a purpose to restrain ISC” Legis can act with a means to regulate for X purpose. (purposes for means of reg & objects of that reg)