THE EQUAL PROTECTION CLAUSE

The provision of the Constitution that governs discrimination is the equal protection clause of the Fourteenth Amendment. It provides as follows:

No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.

The clearest thing about this clause is that it is not clear. Whatever it means, it cannot mean that laws cannot ever treat people unequally. Criminal laws treat those who commit crimes quite differently from those who do not. The general idea behind the clause seems to be that like cases should be treated in like ways. Put negatively, the clause prohibits unequal treatment when there is no significant difference. This, however, is still both general and vague, for we need principles that determine what sorts of likenesses matter and what kinds of differences are significant.

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).