All of these are known as “graduated” tests and have drawn widespread criticism, including Justice Thurgood Marshall, who advocated a “range of standards in examining discrimination” rather than separate layers. [64] Justice John Paul Stevens argued only for a level of review, since “there is only one equality clause.” [64] The entire graduated strategy developed by the Court seeks to reconcile the principle of equal protection with the fact that most laws are necessarily discriminatory in one way or another. [65] Satirists take a dangerous position – skewing dogmas and cantmas and irritating the establishment when it needs its protection. For an example of how this rule limits the Court`s powers under the equal protection clause, see McClesky v. Kemp (1987). In this case, a black man was convicted of murdering a white police officer and sentenced to death in the state of Georgia. One study found that murderers of whites were more likely to be sentenced to death than murderers of blacks. [70] The Court concluded that the defence had failed to prove that this data demonstrated the necessary discriminatory intent of the Georgian legislature and executive. Under Chief Justice Earl Warren in the 1960s, the concept of equal protection was radically modified and applied to cases involving benefits, exclusionary zoning, community services and school funding. Equal protection has become a fruitful source for constitutional courts. Under the administration of Chief Justice Warren E. Burger and William H. Rehnquist, the Court considerably expanded the list of situations that could be decided under the doctrine of equal protection, including sex discrimination, the status and rights of aliens, suffrage, abortion and access to justice.

In Bush v. Gore (2000), the result of that year`s disputed presidential election, the Supreme Court`s decision that the selective recount in Florida violated the equality clause helped preserve George W. Bush`s narrow victory in that state and in the Electoral College. In his most controversial interpretation of the equality clause, Plessy v. Ferguson (1896), the Supreme Court upheld a Jim Crow law in Louisiana that required the separation of blacks and whites on railroads and required separate cars for members of both races. [38] The Court, through Henry B. J. Brown that the equality clause was intended to defend equality in civil rights, not equality in social agreements. Therefore, all that was required by law was reasonableness, and the Louisiana Railroad Act fully met that requirement, as it was based on “the established customs, customs, and traditions of the people.” Justice Harlan again disagreed. “Everyone knows this,” he wrote, and in the late nineteenth century, the court considered whether the government`s racial segregation violated the constitution. If people were divided into different institutions by race, but those institutions were supposed to be equally suitable, does that constitute discrimination? Historians have debated whether the Fourteenth Amendment was intended to end this segregation, but in Plessy v. Ferguson (1896), the court ruled by a vote of 7 to 1 that so-called “separate but equal” facilities (in this case, railway cars) for blacks and whites did not violate the equality clause.

The decision cemented racist Jim Crow-era laws. In a famous dissent, Justice John Marshall contradicted Harlan, stating, “Your constitution is colorblind.” Plessy remained the law of the land until 1954, when it was incorporated in Brown v. School Board. The Supreme Court unanimously rejected Plessy`s argument, ruling that separate schools for blacks and whites violated the equality clause. Brown was a turning point in a decades-long struggle to dismantle government-imposed segregation, not only in schools, but throughout American society. Brown was a turning point, but it wasn`t the end of the fight. For example, it was not until 1967 in Loving v. Virginia that the Supreme Court found that laws prohibiting interracial marriages violate equal protections. The next important post-war case was the Civil Rights Case (1883), which concerned the constitutionality of the Civil Rights Act of 1875. The law stipulated that everyone should “enjoy fully and equally .. Inns, public transport by land or sea, theatres and other places of public entertainment. In its opinion, the Court explained the doctrine now known as the “doctrine of acts of the State”, according to which the guarantees of the equality clause apply only to acts “sanctioned in any way” by the State.

Banning blacks from attending plays or staying in inns is “simply a private injustice.” Justice John Marshall Harlan disagreed, stating, “I cannot resist the conclusion that the content and spirit of recent constitutional amendments have been sacrificed by subtle and ingenious verbal criticism.” Harlan further argued that because (1) “public land and sea transportation” uses public roads and (2) innkeepers engage in “quasi-public employment” and (3) “public entertainment venues” are permitted under state law, excluding blacks from using these services was a state-sanctioned act. It prohibits hanging a black man for a crime for which the white man cannot be hanged. It protects the black man in his fundamental rights as a citizen with the same shield that it throws at the white man. Is not the time now elapsed when one measure of justice is to be applied to a member of one caste, while another measure is applied to a member of another caste, both castes being equal citizens of the United States, both obliged to obey the same laws to bear the burdens of the same government, and both equally responsible before justice and before God for acts done in the body? At a Harvard Law School symposium a few years ago on the occasion of the centennial of Plessy v. Ferguson (1896), I struggled to articulate the duality of the Fourteenth Amendment: its original purpose and imperative was undeniably to eliminate discrimination against African Americans. And yet, the amendment was intended to protect everyone from unequal treatment before the law. One goal does not cancel the other. As Judge Guido Calabresi said on that occasion, there are two Fourteenth Amendments: the Fourteenth Amendment for All and the Fourteenth Amendment, which contains the Thirteenth Amendment. That is not to say that the Thirteenth Amendment does not apply to everyone; it prohibits slavery and involuntary servitude throughout the United States.

But the part of the Thirteenth Amendment that erased insignia and incidents of slavery had meaning for a people. The duality of the equality clause is evidenced by the fact that the authors of the Fourteenth Amendment took all sorts of race-conscious measures specifically for black Americans: the Freedman`s Bureau, schools, hospitals, banks, and land. History does not support the idea that mere racial consciousness, whatever its intent, was incompatible with the Fourteenth Amendment. When the law imposes an unequal hand on those who have committed the same quality of crime per se, sterilizing one and not the other, it has made an abominable discrimination as if it had chosen a particular race or nationality for oppressive treatment. While the equality clause itself applies only to state and local governments, the Supreme Court ruled in Bolling v.