Equality and the Fourteenth Amendment: The Original Understanding
IN THE WORDS OF Lincoln's Gettysburg Address, the United States "was conceived in liberty and dedicated to the proposition that all men are created equal." It could be expected, therefore, that the meaning of equality should become a central issue in American politics when the liberty of the Founding was augmented by the emancipation of four million Negro slaves during the Civil War. The Thirteenth Amendment, a wartime measure intended to complete the process of emancipation, laid the foundation for a national civil rights policy. When subsequent political events more clearly revealed the nature of post-emancipation race relations, the Thirty- Ninth Congress proposed the Fourteenth Amendment as a plan of reconstruction establishing basic principles for the protection of civil rights. Declaring that all persons born or naturalized in the United States were citizens of the nation and of the state in which they resided, the amendment prohibited the states from abridging the privileges and immunities of U.S. citizens, depriving any person of life, liberty, or property without due process of law, or denying to any person "the equal protection of the laws."
As the meaning of liberty under the due process clause was a major constitutional issue from the end of Reconstruction to the 1930s, so the meaning of equality in the equal protection clause of the Fourteenth Amendment has been a critical issue in the civil rights era that began after World War II. As formulated in judicial and scholarly analysis in the 1980s, the problem of equality poses this question: Was equality in the Fourteenth Amendment a new constitutional principle, concerned primarily if not exclusively with the status and rights of black Americans and intended continually to be redefined____________________