The Language of Argument

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T h e L a w o f D i s c r i m i n a t i o n

reasonable purpose, and whether the separate facilities were truly equal.

The Court held that the segregation statute did not violate the equal protec-

tion clause so long as the facilities were equal. This became known as the

separate-but-equal doctrine.

The Strict Scrutiny Test

As soon as Plessy was decided, southern and some border states rapidly

passed a whole series of segregation laws. These were subsequently upheld

by the courts on the precedent of Plessy and its separate-but-equal doctrine.

The result was the introduction of a system of racial segregation throughout

much of the country.

The doctrine of the rational-relation test remained basically unchanged until

the 1940s. During World War II, the Supreme Court had to decide whether it

was constitutional to relocate Japanese Americans away from Pacific ports. In

Korematsu v. United States, 323 U.S. 214 at 216 (1944), the Court announced that

all legal restrictions which curtail the rights of a single racial group are immediately

suspect. That is not to say that all such restrictions are unconstitutional. It is to say

that the courts must subject them to the most rigid scrutiny.

It is ironic that the Court did not strike down the Japanese relocation orders,

but these cases established a new interpretation of equal protection that

eventually greatly increased the power of the courts to strike down discrimi-

natory laws.

On this new interpretation of the equal protection clause, most laws still

need to pass only the rational-relation test, but there are two features of a law

that serve as triggers of strict scrutiny. A law must pass strict scrutiny if the

law either restricts a fundamental right or employs a suspect classification. Fun-

damental rights concern such things as the right to vote or the right to pro-

create. A classification is suspect if it concerns race, religion, national origin,

and so on. Under the new interpretation of the equal protection clause, states

could still pass laws restricting fundamental rights, and these laws could

still employ suspect classifications, but, when they did so, a heavy burden

of proof fell on them. To justify such a law, the state had to show that (1) the

legislation serves a legitimate and compelling state interest, and that (2) it does

so in the least intrusive way possible (or, as later courts put it, the legislation

must be “narrowly tailored” to fit the interest). This is the strict-scrutiny test.

It should be clear that the rational-relation test is easy to meet, whereas

the test of strict scrutiny is nearly impossible to satisfy. It is not hard to show

that a piece of legislation has some chance of serving some legitimate goal

and, thus, passes the rational relation test. It is difficult to show that the pur-

pose of a law is compelling—that is, of overwhelming importance; and it

is even more difficult to show that the stated purpose cannot be achieved

by any less intrusive means. Thus, in adopting this new test, the Court no

longer showed great deference to state legislatures, as it did in Plessy, when

it applied the rational-relation test. Instead, the heaviest burden was shifted

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