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 political rally, with the police standing by doing nothing to protect the demonstrators, 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. On this view, the state was forbidden to aid discrimina- tion, but it was not required to protect anyone against it.

Another issue that arose concerned what the state has to do to justify treat- ing people differently. Here the courts decided that it was not their business to examine the details of legislation to make sure that the laws were as equi- table as possible. The task of making laws, they held, falls to legislatures, and the courts gave legislatures wide latitude in formulating these laws. Flagrant 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, a law that made blacks ineligible for jury duty was struck down on the grounds that the equal protection clause prohibits discrimination in ar- eas of civil rights. In Yick Wo v. Hopkins, 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 mention racial or ethnic groups can violate the equal protection clause if they are ap- plied 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 protection clause extends to social rights, whether the segregation law served any reasonable purpose, and whether the separate facilities were truly equal. The Court held that the segregation statute did not violate the equal protec- tion clause so long as the facilities were equal. This became known as the separate-but-equal doctrine.