Equal Protection Clause - Background

Background

The Fourteenth Amendment was enacted in 1868, shortly after the Union victory in the American Civil War. After the Thirteenth Amendment, which was proposed by Congress and ratified by the states in 1865, had abolished slavery, many ex-Confederate states adopted Black Codes following the war. These laws severely restricted the rights of blacks to hold property, including chattels and real property and many forms of personal property; to form legally enforceable contracts or enter into agreements involving securities, or other negotiable or commercial paper. These codes also created harsher criminal penalties for blacks than for whites.

Because of the inequality these Black Codes imposed, Congress enacted the Civil Rights Act of 1866. This Act provided that all those born in the United States were citizens of the United States (this provision was meant to overturn the Supreme Court's decision in Dred Scott v. Sandford), and required that "citizens of every race and color ... full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens." Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment. The effort was led by the Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens. The most important among these, however, was Bingham, a Congressman from Ohio, who drafted the language of the Equal Protection Clause.

The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the ... Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated, to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.

By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing some of the same restrictions on the federal government: "Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive."

Originally, women were excluded from equal protection under the Bill of Rights. In 1971, in a U.S. Supreme court decision of Reed v. Reed, the Equal Protection Clause of the Fourteenth Amendment was extended to women.