Legal Aspect. The translation of this historical amal-
gam of religion, politics, and economics into the cur-
rent legalistic concept of equal protection followed a
similar kind of circularity. First, the law had to recog-
nize the fact that differences existed among men, cor-
porations, and institutions. And even if there were no
identifiable differences some would have to be pro-
vided, e.g., geographical ones, because millions of per-
sons were involved. Second, on the basis of such natural
or man-made differences, whom and how could the
governments then affect? It is at this point that equal
protection, based on an acceptable or valid group
classification, emerges; once properly classified, groups
may be treated differently but, within themselves, all
persons must be treated equally or alike. In every new
or old nation, whether representative or monarchical,
socialist or otherwise, such identifiable differences, and
others which conform to their own mores and laws,
are used, but without universal uniformity being re-
quired (although note the efforts of the U.N., below).
This classification and then equal protection or
treatment may each or both be required in a country
as the result of custom and history, a law, or a consti-
tution; for example, English custom before and after
the Norman Conquest of 1066, and the French Decla-
ration of 1789 (par. XIII). There can, of course, be a
negation of such classifications, as is found in the Uni-
versal Declaration of Human Rights adopted by the
General Assembly of the United Nations in 1948, that
all human beings are entitled to all their rights and
freedoms “without distinction of any kind...” (Art.
2, par. 1).
In every country, whether by custom, law, or consti-
tution, such classification and equal treatment are ini-
tiated and regulated by its parliament, legislature, or
congress, with the judiciary entering in a minor and
interpretive role, as in England (e.g., the House of
Lords), France (Cour de Cassation), Germany (Consti-
tutional Court or Bundesverfassungsgericht), and India
(Supreme Court). In the United States, however, the
legislative and executive branches seem to be only the
proposers, with the Supreme Court acting as the de-
terminer in each such aspect of classification and treat-
ment. This is brought about by the language and inter-
pretation of a portion of the Fourteenth Amendment
to the Constitution which is binding upon the states
directly, and to some extent upon the federal govern-
ment by judicial interpretation: “No State shall...
deny to any person within its jurisdiction the equal
protection of the laws” (§1, sentence 2).
While this Equal Protection Clause does not specifi-
cally mention classification, the judiciary necessarily
permits this; as Justice Frankfurter said in 1943, “The
right to legislate implies the right to classify.” Classifi-
cation is the jugular vein of equal protection. For
example, if the government desires to separate XY, the
line drawn between them, or the classification X/Y,
must be a valid one, that is, constitutionally permitted.
If this classification is upheld then all in X may ordi-
narily receive more or less than all in Y, and so long
as all X's and all Y's receive more or less equally, i.e.,
if they are all treated alike within their own classifica-
tions, then they have all received equal protection. This
permits one to view equal protection as equal discrim-
ination; that is, the class receiving less is discriminated
against with respect to the other class, but so long as
this discrimination is spread equally among all within
the lesser class, there is no violation of the Clause. If,
however, X/Y is held to be an invalid classification,
then one XY group results; and so all X's and all Y's
must now be treated as one XY group, that is, alike
and not differently, as when they were classified sepa-
rately.
The initial question may therefore be whether the
government has the power to classify in this manner.
In the United States this ordinarily becomes a question
of Due Process of Law in its substantive aspects, that
is, whether or not the legislature has power to classify
in this fashion for this purpose is ordinarily to be
determined by this Clause. In 1966, in an exceptional
situation, a “requirement of some [degree of] rational-
ity in the nature of the class singled out” seems to have
been suggested (Rinaldi v. Yaeger, 384 U.S. 305, 308).
However, assuming that such a classification—and also
any subclassification—is upheld then one may next
question whether all in each class are receiving equal
or like treatment. In other words, equal protection now
enters. (Of course a government may not have any
power at all to act for or against the persons regardless
of a valid classification, which is a completely separate
question brought under any constitutional clause, or
there may be a lack of procedural due process, but
these are technical legal problems not pertinent here.)
In this analysis the classification question is generally
decisive (assuming government power to act as it de-
sires). Whether or not a particular classification is
good or bad, i.e., constitutional or not, is, however,
not only a reflection of a nation's historic background
and culture but of all of its current and changing
attitudes, as well as of how all this is interpreted and
applied by those having this power. In the United
States the judicial view is to uphold legislative or
executive classifications when these are not arbitrary
or capricious but are rational and reasonable. In 1928
Justice Brandeis wrote that “the classification must rest
upon a difference which is real, as distinguished from
one which is speculative, remote or negligible.”
The American judiciary has upheld classifications
involving or based upon sex, age, income, wages, hours,
etc., although repudiating illegitimacy as “an invidious
discrimination against a particular class” where only
legitimates were permitted to sue for the wrongful
death of a next of kin. In several instances the High
Court has first upheld, and later denounced, classifica-
tions. For example, in 1894, in Plessy v. Ferguson, a
state's classification of persons on the basis of color was
upheld for the purpose of requiring all black people
to ride in railroad coaches reserved for them, so long
as these coaches were physically equal to those re-
served for the non-black. In 1954 the Desegregation
Case reversed this holding because, in the light of new
social discoveries and knowledge, such a classification
in education on the basis of color was wrong. Subse-
quent rulings extended this rejection of a color classifi-
cation. And, in a remarkably viable decision in 1968,
the Court upheld §1 of the Civil Rights Act of 1866
as authorized by the Thirteenth Amendment so that
federal courts could restrain racial discrimination by
private individuals in the sale of realty (
Jones v. Mayer
Co., 392 U.S. 409).
This humanistic attitude toward people, as distin-
guished from associations, corporations, and all imper-
sonal groups subsumed under the constitutional term
“persons” in the Equal Protection Clause, makes for
a greater equality in protection and in treatment. In
this respect the United States has permitted its judges
to lead in determining whether or not such Clause is
to be extended beyond its former boundaries. But equal
protection is not limited to this Clause; it is accorded
in many and different ways, in addition to the volun-
tary methods adopted by religious and other groups,
and individuals. For example, there are other Clauses
available, as well as various legislatures and chief exec-
utives who may also so act, either independently or
in conjunction.
There is thus a broadening of equality and equal
protection, a greater inclusion of people within its
concepts, with more extensive and deeper protection
accorded, even while the built-in historical method of
classification remains. For example, equal protection
in its general and not necessarily legalistic sense, is also
found through the negative use of the Due Process
Clause, which generally limits governments in the
United States when these seek to prevent permanent
resident aliens from working, operating businesses, or
otherwise earning a living. The Constitution's Com-
merce Clause (Art. I, §8, cl. 3) is also used to enable
the federal government to prevent inequities and pro-
vide for a degree of equality, for example, through
desegregation of motels and restaurants which may not
be otherwise reachable. The Bill of Rights, among other
things, enables all persons to demonstrate peacefully
and to speak and protest so as to obtain equality in
all facets of life, and gives any accused the right to
counsel regardless of financial inability to pay. The
legislatures, either federal or state, may strike at dis-
crimination and the unequal treatment of black people,
aliens, or others in job opportunities. The chief execu-
tives, whether federal, state, or local, may exert similar
negative and positive powers with respect to their
armed and police forces, and otherwise.
