EQUAL PROTECTION IN LAW
Ancient Roots. The idea of equal protection seems
originally to be rooted in the individual's relations to
nature and to God. In relation to nature, men have
always primordially and collectively feared other crea-
tures and the elements, and thereby found a common
ground for mutual protection, sharing an empathic
sense of a levelling equality. For example, the seasonal
overflowing of the Nile made all helpless equally, re-
gardless of station. In his relation to God, man believed
that a higher will rewarded all the faithful equally in
a later, if not the present, world. In both the natural
and supernatural domains, however, differences were
undeniably recognized: a stronger physique was better
for hunting, whereas an older head might be preferred
for advice. These dissimilarities undoubtedly led to a
social stratification of chieftains and priests in an hier-
archical, if not a caste, system, with varied supporting
justifications such as hereditary innate differences or
divine dispensation. Economic and social distinctions
eventually followed, and wars and conquests also re-
sulted in the capture and enslavement of man by his
fellows.
The originally felt need for equality of protection
is found even among early civilized peoples, who at
the same time also practiced inequality. However, the
idea of justice functioned to compel equal protection
in various ways. Thus Egypt's kings were divine, and
they sanctioned oppressive regimes, but Thutmose III
(ca. 1500 B.C.) nevertheless charged his new chief jus-
tice that “thou shalt act alike to all”; in the Coffin
Text a god announced he had “made every man like
his fellow” and “made the floodwaters of the Nile for
the benefit of the poor man and the great man alike,
and given all men equal access to the kingdom of the
dead” (Muller, p. 58). So the Hebraic theocracy set
up the Ten Commandments to be administered evenly
among the chosen tribes, while the Mesopotamian King
Hammurabi (ca. 2100? B.C.) legalized inequality by
adjusting penalties and damages to rank.
The Greeks felt united against all others, whom they
called barbaroi, and practiced a form of political
equality in that a marketplace assemblage of all the
citizens (demokratia) made the laws and administered
justice, as did the Germanic tribes a thousand years
later. Greek society was democratic and unequal, and
Janus-like, presented two faces, best exemplified in the
ideas of Plato and Aristotle. “Equality consists in the
same treatment of similar persons,” wrote Aristotle;
“equality [is] not, however, for all, but only for equals.
And inequality is... only for unequals” (Politics
1280a). What the Greeks so taught and practiced was
continued in subsequent years and centuries; for exam-
ple, Rome applied to all equally the same general
principles of the jus gentium.
The sense and practice of inequality in society and
religion continued into the Middle Ages, with Saint
Augustine defending government, private property,
and slavery, and Aquinas also expounding different
“just” prices for each separate class in society. The
Renaissance revolt against authoritarianism in all fields
of knowledge and belief, for example, Luther, Rabelais,
and Ramus (1515-72), may have inspired subsequent
centuries, but without exception every nation then
upheld the inequality of classes and the unequal treat-
ment or protection in the distribution of land and
wealth. The Reformation was not much better; Luther
exalted the God-derived power of the prince and glor-
ified the state and its class system, while Hobbes's
sophisticated liberalism gave it support in a rationalist
political philosophy.
Nevertheless, the idea of man's supremacy over na-
ture led to a great levelling movement in Western
political, religious, and social history, with a conse-
quent desire for equality and like treatment. This was
translated in many countries and in various ways, e.g.,
the English Revolution of 1688, which projected
Locke's idea of a social contract among men who were
all equal, an idea which the German Enlightenment
reciprocated, for example, in Wolff's (1679-1754) view
that all men are equal before nature. And this view
is, of course, the essence of the American Declaration
of Independence of 1776, which exalted the doctrine
that “all men are created equal,” and of the French
Declaration of the Rights of Man and of the Citizen
(1789) which stated “Men are born, and always con-
tinue, free and equal in respect of their rights.”
Through both these documents the middle class
achieved political power; Adam Smith's (1723-90) idea
of free competition put all persons on a plane of origi-
nal economic equality; in the nineteenth century Dar-
win gave a scientific imprimatur to man's basic equal-
ity, at least in forebears; and the nineteenth- and
twentieth-century nationalization and internation-
alization of democratic ideas adopted the Enlight-
enment's idea of man's political right to equality
everywhere.
This levelling movement was, however, not uniform
in time or degree; even the Constitution of the United
States partly repudiated the Declaration's egalitarian
statement by supporting a system which safeguarded
property and class distinctions to a degree; and, despite
the idea's growth, questions were asked concerning
what sort of equality it was which taxed all equally
regardless of differences in wealth. As Anatole France
formulated it: “The law in its majestic equality, forbids
the rich as well as the poor to sleep under the bridges,
to beg in the streets, and steal bread.” And when the
consequences of such individual equality resulted in
an economic laissez-faire exploitation with inequality
and hardships occurring, many people and nations
rejected the practice if not the theory of such a defini-
tion and application of the idea.
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.
Other Countries. What the United States is doing
through its various powers and organs, and what its
people do voluntarily, meet with varying degrees of
opposition; such opposition is also found elsewhere in
the world, sometimes in a repressive fashion. Rhodesia
is only one example. Nevertheless, the idea of equal
protection and treatment has spread during the last
two centuries to the point where the United Nations'
purposes include the development of “friendly rela-
tions among nations based on respect for the principle
of equal rights,” etc. (Charter, Art. 1, par. 2). So, too,
does India's Constitution provide for equality (Arts.
14-18) and other rights, as does that of the Philippines,
which contains a Bill of Rights. In 1968 the new
Canadian Prime Minister reportedly promised “to
strive for a just society with all possible freedom for
individuals and equal sharing of the country's wealth.”
The desire for equal protection and treatment polit-
ically, economically, educationally, and in all other
aspects of human behavior and conduct has spread with
the “revolt of the masses” envisaged since Christ. This
current desire and need for such negative and positive
equal protection is aggressive, that is, the people press
for it, but is also defensive, that is, persons and nations
which can aid do so not only for humanitarian reasons
but also for self-interest. Some feel that this glacial
movement toward equality will result in a complete
levelling of differences and the elimination of all clas-
sifications, but this is impossible. What appears more
likely to happen is a general raising of the economic
standards of living, equal participation in government
and culture, and otherwise the enjoying of more of the
good life by those once classed as inferiors.
BIBLIOGRAPHY
Additional bibliographies are contained in several of the
following, and cases and citations are found throughout. L.
Abbott, The Rights of Man (Boston, 1901). Aristotle, Politics,
trans. B. Jowett (Oxford, 1885), pp. 79-80, 232. M. Berger,
Equality by Statute, rev. ed. (New York, 1967), biblio., pp.
230-36. C. F. Emerick, The Struggle for Equality in the
United States (New York, 1914). M. D. Forkosch, Consti-
tutional Law, 2d ed. (New York, 1969), and idem, “The
Desegregation Opinion Revisited: Legal or Sociological,”
Vanderbilt Law Review, 21 (Dec. 1967), 47-76. R. J. Harris,
The Quest for Equality (Baton Rouge, La., 1960). H. J.
Muller, Freedom in the Ancient World (New York, 1961),
p. 58. H. A. Myers, Are Men Equal? (Ithaca, N.Y., 1945).
J. H. Wigmore, A Panorama of the World's Legal Systems,
3 vols. (St. Paul, Minn., 1928), I, 16.
MORRIS D. FORKOSCH
[See also Class;
Democracy; Enlightenment;
Equality; Hi-
erarchy;
Justice; Law, Due Process, Natural; Property.]
