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Equality under the Constitution
Reclaiming the Fourteenth Amendment
Judith A. Baer
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Equality under the Constitution
Reclaiming the Fourteenth Amendment
Judith A. Baer
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About This Book
The principle of equality embedded in the Declaration of Independence and reaffirmed in the Constitution does not distinguish between individuals according to their capacities or merits. It is written into these documents to ensure that each and every person enjoys equal respect and equal rights. Judith Baer maintains, however, that in fact American judicial decisions have consistently denied individuals the form of equality to which they are legally entitled—that the courts have interpreted constitutional guarantees of equal protection in ways that undermine the original intent of Congress. In Equality under the Constitution, Baer examines the background, scope, and purpose of the Constitution's Fourteenth Amendment and the history of its interpretation by the courts. She traces the development of the idea of equality, drawing on the Bill of Rights, Congressional records, the Civil War amendments, and other sections of the Constitution. Baer discusses many of the significant equal-protection cases decided by the Supreme Court from the time of the amendment's ratification, including decisions on reverse discrimination, age discrimination, the rights of the disabled, and gay rights. She concludes with a theory of equality more faithful to the history, language, and spirit of the Constitution.
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Introduction
“The nation was born with the word on its tongue.” Thus one historian wrote of the idea of equality in America. “The first of those ‘self-evident truths’ of the Declaration was that ‘all men are created equal.’ Back of that was the heritage of natural rights doctrine, and back of that the great body of Christian dogma and the teaching that all men are equal in the sight of God.”1 But equality has never been a given in American life. Those egalitarian doctrines have coexisted with inegalitarian ideas and practices; coexisted not only in the same country but in the same mind. Thomas Jefferson, for instance, wrote not only the Declaration of Independence, but also of his “suspicion” that “the blacks … are inferior to the whites in the endowments both of body and mind.”2 Law has often reflected such beliefs, the most notorious example being the institution of slavery. Battle after battle—literal and figurative—has been fought for equality under law, and equality has not always won.
The longest and bitterest fight has been the movement for racial equality. Its first stage, the drive to abolish slavery, culminated in a civil war and three amendments to the Constitution. One of these amendments, the Fourteenth, contains the one explicit constitutional guarantee of equality: that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Since the amendment was ratified in 1868, this clause has become a powerful guarantee of racial equality and a bulwark for ethnic and religious minorities. It has been an effective, though limited, tool in the revival of a long-moribund movement for women’s rights, and to a lesser extent has served aliens and the poor.
In the 1980s, all these groups continue to make demands for equality. But the last decade has brought new developments, too. Increasingly, these demands take new and diverse forms and come from new and diverse groups. The drive for racial equality has some new twists. One is a demand by minority groups for compensatory preferential treatment, or “reverse discrimination.” Four Supreme Court decisions in the last ten years have shown how difficult it is to deal with these demands according to traditional legal doctrines.3 And groups that had not been noted for political or litigious activism have begun to perceive themselves as disadvantaged minorities and to try to use law to redress their grievances.
We have long been conscious of racial and sexual inequalities, but now attention focuses on groups distinguishable by such traits as age, disability, and sexual orientation. The old, the young, the handicapped, and homosexuals have become more and more active in their own interests. All have made some gains and suffered some losses, both legislative and judicial.
Several federal laws have been passed to secure the rights of the disabled. The election of Ronald Reagan to the presidency in 1980, however, and the Republicans’ continuing majority in the Senate in 1982 have jeopardized funding to implement these laws. Homosexuals have won and lost several campaigns for state and local antidiscrimination laws. The 1978 amendment to the Age Discrimination in Employment Act raised the age of compulsory retirement in many occupations from sixty-five to seventy.
Courts, too, are being kept busy with cases initiated by these groups, with mixed results. Much of the political pressure for the laws to aid the disabled came in response to two district court decisions upholding the right of handicapped children to an education.4 But the first Supreme Court decision construing the Rehabilitation Act of 1973 was a unanimous ruling against the claimant. A year later, the Court’s refusal to review a California case upheld a ruling that the parents of a Down’s syndrome child might refuse lifesaving surgery for him.5
Gay activists have also met with various results. Their major judicial victory has been recognition of their First Amendment rights of association, but even this gain rests on the insecure foundation of Supreme Court denials of certiorari.6 By the same device, the Court left in force employment discrimination against homosexuals, but lower court decisions have been patternless.7 And the courts have consistently denied to homosexuals the rights of personal privacy granted to heterosexuals.8
The record on age discrimination is similarly mixed. The Supreme Court has twice reversed lower courts to sustain compulsory retirement laws.9 At the other end of the scale, it has ruled that juvenile courts must provide notice, hearing, and counsel but not jury trials, and invalidated school suspensions without a hearing but upheld corporal punishment.10 Thus it has shown that in some circumstances it will limit the powers of school and state over children. It is reluctant to limit parents’ powers, however, and the reluctance is shared by the lower courts.11 The Down’s syndrome case I just mentioned is one example. A 1979 ruling upheld the right of parents to commit their children to state mental institutions without a hearing, and two years later the Court sustained a law requiring physicians to notify the parents of a minor before performing an abortion.12 Many of these rulings are hard to reconcile with the guarantee of equal protection.
None of these groups enjoys full equality under law. Somehow handicapped people, homosexuals, and old or even middle-aged people are not protected against employment discrimination as blacks and women are. Children do not have the same protection against institutionalization as adults do.13 But perhaps the most striking fact revealed by these cases is that a retarded child literally does not have a right to his life. The Constitution and laws of the United States, which gave so much protection to blacks in the 1950s and 1960s and valuable protection to women in the 1970s, have not been so beneficial to these groups in the 1970S and 1980s. We must ask why this is so, and what effect the decisions have had on new groups and new claims. Exploring these questions, and others that arise from them, requires an inquiry into the origin, scope, and implications of a major part of the Constitution: its guarantees of equality.
Such an inquiry is an exercise in constitutional interpretation. It seeks to determine the meaning, or part of the meaning, of a document. The scholar who attempts such a task is confronted with problems of source and method. Where does one go to look for such meaning, and how does one proceed? In the two hundred years that Americans have engaged in constitutional interpretation, they have developed various approaches. This book will use, and show others using, many of these approaches.
One source of meaning is the document itself. For my purposes, the equal-protection clause is one logical starting point. What do the words “No state shall … deny to any person within its jurisdiction the equal protection of the laws” mean? This mode is what John Hart Ely calls “clause-bound interpretativism.”14 It is exemplified by Justice Hugo Black’s abolutist interpretation of the free-speech clause of the First Amendment: “I read ‘no law abridging’ to mean ‘no law abridging.’”15 We can envision situations in which clause-bound interpretation of the equal-protection clause would be adequate. Suppose, for example, a state allowed crimes against certain people—blacks, say, or homosexuals—to go unpunished. However one reads the clause, such action violates it. But we can also see defects in this approach, and indeed Ely and others have criticized it extensively.16
A second mode of interpretation ranges through the Constitution to gather meaning from various provisions read together. Charles L. Black, Jr., calls this approach “inference from structure and relationship.”17 One example of this structural analysis is Justice William O. Douglas’ opinion in Griswold v. Connecticut, which finds a constitutional right of privacy established by several provisions of the Bill of Rights and guarantees derived from these provisions.18 A structural analysis that focused on equality would lead at least as far as the whole text of the amendment that contains the equal-protection clause. Since the Fourteenth Amendment was one of the three “civil war amendments,” it would make sense to move backward and forward to the Thirteenth Amendment, which forbids slavery, and the Fifteenth, which guarantees racial equality in voting rights. And since the Fourteenth Amendment speaks of “privileges and immunities,” “life, liberty, and property,” and “due process of law,” structural analysis might lead to provisions that contain these phrases and similar ideas: Article IV, Section 2, or the Bill of Rights. These examples do not purport to exhaust the possibilities, but they do suggest some promising areas of exploration.
Some methods of interpretation go outside the constitutional text. William Harris calls these “transcendent” as opposed to “immanent” modes.19 One external source of meaning is legislative history: the debates and surrounding sources that contain evidence of what the lawmakers who enacted a rule thought they were enacting. Justice Black used this method in his dissent in Adamson v. California, where he relied on the record of the Congressional Globe to argue that Congress intended to make the first eight amendments of the Bill of Rights binding on the states through the due-process clause of the Fourteenth Amendment.20 Another sort of historical argument is the familiar one that relies on the circumstances surrounding the adoption of the Civil War amendments to argue that the equal-protection clause applies only, or mainly, to classifications based on race. Justice William Rehnquist made such an argument in his 1977 dissent in Trimble v. Gordon.21
An inquiry into legislative history is, to a degree, an inquiry about intent. Questions of intent are among the hardest of constitutional questions, for reasons that scholars have discussed before.22 One difficulty is that we cannot even be sure that the written record is accurate. We do not know if what appears in the Globe for 1866 is what was actually said on the floor; for all we know, members may have edited their remarks, as they do now.23 Even if we could trust the record, vexing problems remain. How do we find legislative intent with respect to problems the lawmakers never faced? It is futile to inquire what the authors of the Bill of Rights thought about wiretapping. It is just as useless to ask how the Thirty-ninth Congress thought about disability rights, and for one of the same reasons: their world did not include devices that are preconditions for the integration of severely handicapped people into society to the point where any question of their rights could arise.
Where technological barriers do not exist, it is still possible that a problem that agitates the twentieth century may not have appeared to need discussion in the eighteenth or nineteenth; at least in the United States, the legal rights of homosexuals are one example. Even problems that were discussed by the lawmakers may require rethinking by us. Perhaps the most famous example here is Brown v. B...