Equality and the Constitution

1. In the Fourteenth Amendment, what exactly does the “equal protection of the laws” mean?
2. What statements about equality exist in the Declaration of Independence?
3. Does the Fourteenth Amendment capture the spirit of the Declaration of Independence?
4. Read the equality statements within the Declaration of Independence. (We're thinking specifically of the "All men are created equal" and "endowed by their Creator with certain unalienable rights" bits.) Could these be turned into a different/more complete constitutional mandate?
5. If the Constitution had authorized Congress to “advance and enforce the principle that all men are created equal,” what sorts of laws might have been passed?

State Discrimination and Private Discrimination

1. Based on the Fourteenth Amendment, against what sort of discrimination can the federal government take action?
2. How has the federal government attempted to expand its ability to ensure equal protection?
3. Who do you think is "clothed with the State's power" and therefore subject to federal government action under the fourteenth Amendment?
   • If the state board of health issues an operating license to a restaurant that refuses to seat African Americans, does the state become a party to the discrimination and therefore subject to federal government intervention?

Protected Classes

1. Why have the courts been forced to take a two-tiered approach to enforcement of the Fourteenth Amendment?
   • What was the primary intent of the amendment?
   • What critical phrase opened the door to a broader application of the amendment’s terms?
2. Does this make sense? Or is this contradictory?
   • Does American history make a two-tiered approach logical and necessary?
   • Or is a “two-tiered” system of “equal protection” fundamentally flawed?
3. What does this two-tiered approach look like in practice?
   • What is the difference between a “restrained” and “active” review of laws?
4. Should the number of “suspect” classes be increased?
   • As it currently stands, only laws employing racial classification are routinely subject to “strict scrutiny.” Should laws that employ other classifications be scrutinized with the same rigor?
     • Gender?
     • Age?
     • Sexuality?
     • Ethnicity?
     • Citizenship?
     • Disability?