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The Equal Protection Clause

§ 26.1 A Summary of Equal Protection Review of Classifications in the Law: Rational Basis, Intermediate Scrutiny, and Strict Scrutiny Review

The Equal Protection Clause of § 1 of the 14th Amendment provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." By explicit text, this provision applies only to "State" action, i.e., the actions of states and their political subdivisions, cities and counties. The federal government is not limited by the text of the 14th Amendment. However, in 1954, the Court held in Bolling v. Sharpe,1 discussed at § 26.2.3.1.B n.178, that the Fifth Amendment's Due Process Clause, which does limit the federal government, has an Equal Protection "branch," so that the Equal Protection Clause of the 14th Amendment, which textually applies only to "States," applies to the federal government through the Fifth Amendment's Due Process Clause. To reach this result, the Court stated in Bolling that "discrimination may be so unjustifiable as to be violative of due process."

In a later case, Weinberger v. Wiesenfeld,2 the Court noted that the "Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment." This has remained Court doctrine, despite occasional dicta to the contrary, as in Hampton v. Mow Sun Wong,3 where the Court stated, "[T]he two protections are not always coextensive. Not only does the language of the two Amendments differ, but more importantly, there may be overriding national interests which justify selective federal legislation that would be unacceptable for an individual state." The Court stated in 1995 in Adarand Constructors, Inc. v. Pena,4 "[E]qual protection obligations imposed by the Fifth and Fourteenth Amendments [are] indistinguishable. . . . We do not understand a few contrary suggestions appearing in cases in which we found special deference to the political branches of the Federal Government to be appropriate [citing Hampton, discussed at § 26.2.2.2 nn.346-47] to detract from this general rule." Thus, Equal Protection Clause principles apply today to any form of "state action," whether federal, state, or local governmental action, or private action "fairly attributable" to the government, as discussed under the state action doctrine at § 21.1. As a matter of pleading, one pleads under the Equal Protection branch of the Fifth Amendment Due Process Clause for challenges to the federal government, and under the Equal Protection Clause of the 14th Amendment for challenges to state and local action.

The Court's decision in Bolling was unanimous, and no Justice since Bolling has expressed disagreement with the proposition that equal protection principles apply to the federal government through the Fifth Amendment Due Process Clause. Admittedly, arguments can be made that prior to the 14th Amendment the federal government was not bound, and Congress did not consider itself bound, by equal protection principles.5 Further, it can be argued that nothing in the history or drafting of the 14th Amendment, or congressional practice soon thereafter, was intended to change that result. Indeed, the text that became the Equal Protection Clause "expressly bound both the states and the national government when originally presented to the Joint Committee on Reconstruction by Thaddeus Stevens on April 21, 1866," but after "a week of consideration, the Joint Committee removed the provision's express application to the federal government when on April 28 - after Republican party caucusing - it replaced Stevens's original proposal with John Bingham's substitute formulation [which became the current version with its state-centered text] just before finalizing its workproduct."6 Nevertheless, given the unanimous view of the Justices since Bolling to the contrary, application of equal protection principles to the federal government is, practically speaking, a matter of "settled law." "Settled law" is defined at § 4.3.2 nn.79-85.

Binding all levels of government to principles of equal protection is consistent not only with a literal commitment to equal citizenship of a society at the formalist Stage 4 level of moral reasoning, discussed at § 15.4.1 nn.60-65, but also is consistent with the commitment of a society at Stage 6 to giving each individual equal concern and respect, discussed at § 15.4.1 nn.77-79, including those individuals traditionally or customarily discrimination against at Stage 4. In America, this included minorities, women, the mentally or physically disabled, and illegitimate children, among others. It is also consistent with full elaboration of the meaning of the Declaration of Independence and its promise that all individuals are endowed with equal inalien...

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