The Language of Argument

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C H A P T E R 1 8 ■ L e g a l R e a s o n i n g

Going back to the historical context in which the Fourteenth Amendment

was adopted, we know that it was intended to prohibit unequal treatment on the

basis of “race, color, or previous condition of servitude” (a phrase that occurs

in the companion Fifteenth Amendment on voting rights). More specifically, it

was one of those constitutional provisions intended to protect the newly eman-

cipated slaves. This was the primary purpose of these provisions, but the lan-

guage is more general, giving like protection to all citizens of the United States.

Applying the Equal Protection Clause

After the Fourteenth Amendment was adopted, many questions arose con-

cerning its interpretation and application. The amendment explicitly refers

only to state laws, but the state does many things besides pass laws, so the

courts had to determine what counts as a state action. In a series of cases,

the amendment was interpreted to mean that only positive actions of the

state fell under the amendment. Thus, when thugs broke up a black politi-

cal rally, with the police standing by doing nothing to protect the demon-

strators, the Supreme Court ruled that this was not a violation of the equal

protection clause because the state itself had not participated in the action

(U.S. v. Cruikshank, 1875). On this view, the state was forbidden to aid dis-

crimination, but it was not required to protect anyone against it.

Another issue that arose concerned what the state has to do to justify

treating people differently. Here the courts decided that it was not their busi-

ness to examine the details of legislation to make sure that the laws were as

equitable as possible. The task of making laws, they held, falls to legislatures,

and the courts gave legislatures wide latitude in formulating these laws. Fla-

grant violations of the equal protection clause could lead to the decision that

the law was unconstitutional, but only if the law failed what became known

as the rational-relation test. This test required only that the unequal treatment

of individuals be reasonably likely to achieve some legitimate end.

A final issue was whether the Fourteenth Amendment protected only the

civil rights of citizens or also rights of other kinds. In Strauder v. West Virginia

(1880), a law that made blacks ineligible for jury duty was struck down on

the grounds that the equal protection clause prohibits discrimination in

areas of civil rights. In Yick Wo v. Hopkins (1886), the Court applied the equal

protection clause to discrimination in areas of economic rights. Yick Wo also

established that the equal protection clause protects not only blacks but also

other groups (such as Chinese) and that laws that do not explicitly men-

tion racial or ethnic groups can violate the equal protection clause if they are

applied unequally in practice.

In 1896, the Supreme Court decided the case of Plessy v. Ferguson, which

was about a Louisiana statute enforcing racial segregation in public trans-

portation. This was clearly a state action, and the Court continued to apply

the rational-relation test. The main issues were whether the equal protec-

tion clause extends to social rights, whether the segregation law served any

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