Incorporation, inverse


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Description: Supreme Court's gradually arrived-at conclusion that the equal protection requirement of the Fourteenth Amendment is binding on the federal government through the due process clause of the Fifth Amendment.

Significance: Since the landmark case of Bolling v. Sharpe (1954), the Supreme Court has examined equal protection claims against the federal government with the same standards of scrutiny that it uses when examining similar claims against the states.

In contrast to the Declaration of Independence of 1776, neither the original Constitution nor the Bill of Rights explicitly mentioned a right to equality. The wording of the Fifth Amendment, however, implied a degree of legal equality: “no person” was to be deprived of “life, liberty, or property, without due process of law,” nor was any person to be denied the privileges against self-incrimination or double jeopardy. The words “person” and “persons” apparently denoted human beings, and both words were used to refer to slaves in Articles I and IV of the Constitution. The same year that Congress approved the Bill of Rights, it expressed an egalitarian spirit in the Judiciary Act of 1789, requiring judges to “solemnly swear or affirm [to] administer law without respect to persons, and do equal right to the poor and to the rich.” Despite those foundation documents, many federal laws mandated racial discrimination. The Naturalization Act of 1790, for example, restricted naturalized citizenship to “any alien being a free white person.” Despite the due process clause, the Fugitive Slave law of 1850 did not allow alleged fugitives in northern states to testify in trials or hearings that determined their freedom or enslavement, and the law was found to be constitutional in Ableman v. Booth (1859). In the Dred Scott case, Scott v. Sandford (1857), moreover, the Court asserted that persons of African ancestry possessed “no rights which the white man was bound to respect.” The Fourteenth Amendment, which was ratified after the Civil War, prohibited the states from denying any person the “equal protection of the laws.” This important clause was not applicable to the federal government, apparently because the framers of the amendment were focusing on racial discrimination in the southern states, and the states controlled most public policies applicable to race. When debating the amendment, nevertheless, its framers often made moral allusions to the Declaration of Independence and expressed a belief that all governments were obligated to respect a natural right to equality. Nevertheless, over the ensuing century, the Supreme Court interpreted the equal protection clause so narrowly that the question of a possible federal application seemed of little consequence. Gibson v. Mississippi (1896) was probably the first case in which a Supreme Court justice unequivocally declared that the Fifth Amendment's due process clause prohibited the federal government from practicing racial discrimination. Justice John Marshall Harlan, a former slave owner, explained that the clause protected the life, liberty, and property of “all persons within the jurisdiction of the United States.” Likewise, Justice Harlan Fiske Stone's famous footnote four in Carolene Products Co. v. United States (1938) did not make any distinction between the federal and state governments when suggesting that the Court should use heightened scrutiny in the evaluation of legislation that discriminated against “discrete and insular minorities.” During World War II, the Court had to decide whether discriminatory policies toward persons of Japanese ancestry violated constitutional rights. Approving a curfew in Hirabayashi v. United States (1943), Chief Justice Stone wrote for the Court that racial distinctions were “by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,” and he also observed that precedents based on the equal protection clause would be “controlling” except for the dangers of espionage and sabotage. Although a 6-3 majority of the Court upheld the federal government's displacement program in Korematsu v. United States (1944), all the justices implicitly agreed that principles of due process prohibited the federal government from depriving persons of liberty simply because of their race or ethnicity. Justice Hugo L. Black's majority opinion asserted that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” demanding “the most rigid scrutiny.” One member of the Court, Justice Frank Murphy wrote a dissent that explicitly articulated the concept of inverse incorporation: “Being an obvious racial discrimination, the [displacement] order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment.” A decade later, in Brown v. Board of Education (1954), the Court ruled that segregated schools in the southern states were incompatible with the equal protection clause of the Fourteenth Amendment. In a companion case, Bolling v. Sharpe, the justices ruled that segregated schools operated by the federal government in the nation's capital were also unconstitutional. However, because they were unable to base the Bolling decision directly on the Fourteenth Amendment, they relied instead on a substantive due process interpretation of the Fifth Amendment. As historical precedents, Chief Justice Earl Warren referred to the earlier dicta (or statements) of justices Harlan, Stone, Black, and Murphy. In his argument, Warren utilized a broad definition of liberty, which was said to include “the full range of conduct which the individual is free to enjoy.” Finding evidence that the policy of racial segregation denied African American children of basic life opportunities, he logically concluded that the policy constituted “an arbitrary deprivation of their liberty in violation of the due process clause.” Since its landmark Bolling ruling, the Court has not recognized any distinctions between federal and state cases insofar as they relate to the standards of scrutiny for evaluating equal protection claims. In Rostker v. Goldberg (1981), for example, the Court evaluated a gender classification of the federal government with an approach called “intermediate scrutiny,” the same approach used in considering gender classifications by the state governments. In Adarand Constructors v. Peña (1995), moreover, the Court utilized the strictest level of judicial scrutiny in striking down a racial preference mandated by the federal government, just as it had earlier done in a case involving a racial preference by a city government. Federal cases dealing with equal protection under the Fifth Amendment are relatively rare in comparison with state cases relating to alleged violations under the Fourteenth Amendment.