The Fourteenth Amendment to the U.S. Constitution provides in pertinent part that:
|“||All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.||”|
See Due Process.
The Equal Protection Clause provides that "(n)o state shall . . . deny to any person within its jurisdiction the equal protection of the laws". The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states.
More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the U.S. Constitution also protected rights from abridgment by state leaders and governments, even including some rights that arguably were not protected from abridgment by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate, and the story of the Equal Protection Clause is the gradual explication of its meaning.
One of the main limitations in the Equal Protection Clause is that it limits only the powers of government bodies, and not the private parties on whom it confers equal protection. This limitation has existed since 1883 and has not been overturned. Once the last resort of constitutional argument, this phrase assumed modern importance in the 1954 decision in Brown v. Board of Education of Topeka that segregated schools were unconstitutional. Since that time, the jurisprudence of equal protection has expanded considerably. Modern interpretations of the Equal Protection Clause subject governmental categorizations of people to various levels of scrutiny, with classifications along race and alienage receiving the strictest scrutiny, and then gender.
The prohibition against invidious discrimination contained in the Equal Protection Clause is based, in large part, on the moral and political conviction that people are essentially equal, and that government action cannot be based on designations of a group that are arbitrary from a moral and political point of view. Although science and technology were probably not directly responsible for the emergence of equality as an important constitutional value, they have contributed greatly in its implementation.
The Brown decision relied heavily on the findings of social science to support its reasoning, and modern technology has helped to reduce many of the barriers to employment and military service that were once thought to be justifications for discrimination based on gender. In the future, science and technology will contribute to ongoing debate over the meaning of, and basis for, equal protection of the law. Thanks to science and technology, people are living longer, and continue to be productive well into old age. It is possible, therefore, that classifications based on age will become ever more suspect.
Furthermore, as our knowledge of the genetic component of ability, aptitude, and behavior grows, it may be possible to identify not only what is common to all human beings, but also what is different. Should science establish characteristics belonging to distinct categories of people, we may face constitutional dilemmas between moral value and scientific truth. Science may test the concept of "equality," which has been left an undefined postulate of the law, and require that it be better articulated and more firmly rooted in moral and legal discourse.
Fourteenth Amendment issues may develop from an application of computer-based social science and statistical models to predicting criminal behavior and to aid in such tasks as approving credit, determining insurability, or hiring and promoting employees. Essentially, individuals may be denied rights, privileges, and benefits based, not on past performance, but on a prediction of future tendencies. For example, society cannot imprison a person that a computer model predicts may someday rob a bank. But should that knowledge be "probable cause" to monitor such a person closely or deny him or her employment?
- U.S. Declaration of Independence.
- 347 U.S. 483 (1954) (full-text).
- Science, Technology, and the Constitution, at 16-17.