Equal Protection and Due Process: Examining Constitutional Guarantees and Their Historical Application

Introduction

While the ideals of equal protection and due process are distinct Constitutional principles, they are functionally interdependent in practice. Due process of the law cannot occur meaningfully if not all citizens are protected under the law, and equal protection cannot function if every citizen is not afforded fair and consistent legal procedures. This interdependence becomes especially apparent upon analysis of the Antebellum, Progressive, and Civil Rights eras. Before the ratification of the Fourteenth Amendment, the Constitution held numerous procedural protections—including Fifth Amendment guarantees of protection of life, liberty, and property; Sixth Amendment guarantees of public, impartial juries; and Eighth Amendment guarantees against “cruel and unusual punishments”—but these rights were applied selectively, excluding large portions of the population. The Fourteenth Amendment explicitly articulated equal protection under the law; however, de facto unenforcement of the Equal Protection and Due Process clauses continued to exclude various groups from legal equality. As a result, a significant facet of the American identity is the continuous negotiation between promises of equal protection and due process, along with the struggle to enforce these ideals over time.

Foundations of Equal Protection and Due Process

Magna Carta Clause 39 (1215)

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

Although the Framers drew from English common law traditions that emphasized the rule of law and procedural fairness, early Constitutional protections prioritized federal procedural due process, allowing states to systematically exclude large segments of the population from legal protections. In 1215, the Magna Carta established the Anglican precedent for protecting free men from deprivation of “life, liberty, or property” (Historical Background on Due Process). Later, Anglican jurists such as Sir Edward Coke articulated principles of judicial review and procedural due process for English common law; this influenced the Constitutional provisions for the Supreme Court and cases such as Marbury v. Madison in 1803 (McClellan).

An early example of the influence of due process was the Northwest Ordinance of 1787, which held provisions for a writ of habeas corpus, trial by jury, and other rights associated with due process (Northwest Ordinance 1787). These principles were later codified in the Bill of Rights through the Fifth, Sixth, Seventh, and Eighth Amendments. However, judicial interpretation allowed states to determine local laws for enforcing due process, which enabled exclusion.

The doctrine of applying due process only to the federal government was explicitly expressed in the Supreme Court decision regarding Barron v. Baltimore, which permitted states, such as North Carolina, to create and misapply laws to deprive free people of color of due process. Free people of color could not testify against white defendants and were subject to discriminatory punishments, including hiring out. Henry Parks and Columbus Nichols, two white men, were charged with burglary against a "free woman of color," Sophia Mitchell, and found not guilty by the jury of the Superior Court in Orange County (Milteer, 187). Admittedly, there were cases in which free people of color found justice against white defendants. Nevertheless, the inconsistent legal practices of local justice systems deprived many free people of color of fair legal proceedings. This reveals a pattern of how ideals of due process were inconsistently applied, leading to developments in legislation and Court doctrine that enabled some forms of protection while also sanctioning discrimination.

Myth: Legal Equality vs. Reality

Excerpt from Court Decision in Dred Scott v. Sandford (1857)

"They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."

Despite the formal procedural due process in constitutional law, federal and state institutions actively constructed legal frameworks that continued to exclude nonwhite populations from citizenship and equal protection, reinforcing a myth of universal rights while legitimizing systemic inequality. In his infamous Supreme Court opinion in Dred Scott v. Sandford (1857), Chief Justice Roger B. Taney articulated that enslaved people were not considered citizens and thus not entitled to any of the protections afforded to citizens (Dred Scott v. Sandford), including due process of the law. Although this decision was overturned by the Thirteenth and Fourteenth Amendments of the Constitution, it held serious implications for the legal status of free and enslaved people in the U.S. and, ultimately, contributed to the Civil War.

Even though the Reconstruction Acts, namely the Fourteenth Amendment, ostensibly held provisions to protect due process and equal protection, judicial activism limited the enforcement of these provisions. The Court decision in United States v. Cruikshank (1876) "narrowed the Privileges or Immunities Clause of the Fourteenth Amendment to exclude rights enumerated in the Bill of Rights" and held that the Fourteenth Amendment's Equal Protection Clause only protected against intentional racial discrimination from state action (Pope). In the short term, this decision immunized racial terrorism from groups like the Ku Klux Klan against law enforcement; in the long term, it laid the foundations for discrimination by private actors and exclusionary state laws.

The constraints placed on the Reconstruction Acts culminated in the notorious decision in Plessy v. Ferguson (1896), which allowed the ubiquitous de jure segregation of the Jim Crow Era. The Court’s “separate but equal” doctrine nullified the Civil Rights Act of 1875 and subjected people of color to segregated housing, healthcare, and education (Plessy v. Ferguson). The developments during this era reflect a continuity in the relegation of people of color to inferior legal positions. Although the civil rights statutes were largely left unenforced, their existence foreshadowed the use of litigation to achieve due process and equal protection of the law.

Struggles and Expansion of Equal Protection and Due Process

Conflict—through activism, litigation, and federal intervention—forced the reinterpretation and partial expansion of equal protection and due process, though these gains remained constrained by judicial doctrines that limited the recognition of structural inequality. Litigation from non-government organizations, namely the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund and American Civil Liberties Union (ACLU), spurred judicial activism that expanded judicial interpretation of the Fourteenth Amendment. For example, the ACLU provided legal counsel for the so-called Scottsboro Boys, which led to the landmark Court decision in Powell v. Alabama (1932) that reversed state convictions on the grounds of ineffective assistance of counsel (Granger). Regardless, the young men were tried twice more, resulting in the Court decision in Norris v. Alabama (1935), which declared that Blacks could not be excluded from juries. Ultimately, however, five of the nine young men were found guilty and sentenced. This demonstrates that, although due process formally expanded, the American legal system was still skewed towards the incarceration of nonwhite populations, a pattern that is present in modern-day society.

An American internment camp for Japanese people during World War II.

On the other hand, judicial activism created doctrines that justified discrimination in cases of "military necessity." Korematsu v. United States (1944) sanctioned the internment of over 120,000 Japanese people, most of whom were American citizens (Korematsu v. United States). Although purportedly labeled as a wartime suspension of rights, the internment of Japanese Americans also reflects an overt exclusion based on race, continuing the pattern of incarceration of nonwhite populations.

However, later cases helped support federal enforcement of civil rights. In Cooper v. Aaron (1958), the Court enforced racial desegregation of Arkansas public schools, thereby buttressing its decision in Brown v. Board of Education (1955). These cases marked a shift in the "separate but equal doctrine" and contributed to legislation such as the 1964 Civil Rights Act, which held provisions for the Attorney General to pursue lawsuits involving discrimination in public facilities. In Reed v. Reed (1971), the Supreme Court struck down an Idaho law that automatically preferred men over women as estate administrators, ruling that gender based discrimination violated the Equal Protection Clause (Reed v. Reed). All of these instances represent increased application of equal protection and due process to marginalized groups. Yet, the presumed end of de jure segregation was followed by the advent of new systemic conflicts. Strict scrutiny, the Supreme Court doctrine used to challenge discriminatory policies, was also used to curtail race-conscious remedies, as in Regents of the University of California v. Bakke (1978), where the Court ruled that the university’s affirmative action program denied equal protection (Marshall). This suggests that the expansion of due process and equal protection occurred, but within a framework that resisted fully addressing inequalities, including mass incarceration (Bonczar), historic exclusion, and discrimination.

Conclusion

The evolution of equal protection and due process in the U.S. demonstrates a historical pattern where legal equality was applied selectively. The ideals of the rule of law permeated early foundational texts, but legal systems were allowed to institutionalize inequality. However, the conflict between the myth of these ideals and historical reality produced litigation and activism that reinforced them. This suggests that the exclusion of groups was not an anomaly, but central to the American identity: equal protection and due process functioned as contested claims, and conflict simultaneously exposed and reinterpreted the contradictions in American ideals. With modern controversy over expedited deportations without due process and extrajudicial killings, the conflict between equal protection, due process, and reality still exists. Still, the record has shown that conflict has and will continue to drive the implementations and contradictions of these ideals.