Introduction “In short, the Court created a

Introduction

This amendment was approved on July 1868. The amendment contained two important clauses that marked the history of Civil rights movement in the US. These are the Equal protection clause and the Due Process clause.

The former guaranteed equal protection of the law while the latter protected individuals from deprivation of life, liberty and property by the state without the due process of law. This article looks into the various interpretations given to the Fourteenth Amendment, limitations to its applications and the affirmative action.

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Interpretation of the 14th amendment

The problem that faced the court was in determining what could qualify as equal protection. The first attempt to interpret the Equal protection clause was made in the infamous case of Plessy Vs Ferguson (1896), which advocated for racial segregation. Justice Brown was concerned with the reasonableness of the clause.

He argued that when the court is reviewing state legislation it should consider regulation of public order and the tradition or custom of the people. “In short, the Court created a very lenient standard when reviewing state legislation: If a statute promotes order or can be characterized as a tradition or custom… the statute meets the requirements of the clause” (Peter, 1998, Par 3).

In Brown Vs Board of Education (1954) however, the Equal Protection clause was given a new meaning. Justice Earl Warren found that segregated facilities did not amount to equal protection in law. He stated:

“…the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others…are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment” (Brown Vs Board of Education, 1954).

Hernandez v. Texas (1954) the Court found that the Equal Protection clause to apply to not only whites and blacks but also other races and ethnic groups. Among these, other races were the Mexican-Americans. Since Brown case, women and illegitimate children have been included in the Equal Protection Clause.

“The Supreme Court accepted the concept of distinction by class, that is, between “white” and Hispanic, and found that when laws produce unreasonable and different treatment on such a basis, the constitutional guarantee of equal protection is violated” (Carl 1982. Par.2).

The Due Process Clause was not only meant to protect basic procedural rights but also substantive rights. In the case of Gitlow Vs New York (1925), protection of press from abridgement by the legislature was held to be some of the fundamental freedoms protected by the ‘due process’ clause of the fourteenth Amendment from infringement by the state. Here it was dealing with the substantive rights incorporated in the bill of rights.

However, the decision in Muller Vs Oregon (1908), showed that the state could restrict working hours of women if doing so was in their best interest. This decision was made in due regard to the physical health of a woman. It was held that the physical role of women in childbirth and their social role in the society is an issue of public interest permitting the state to regulate their working hours notwithstanding the ‘due process’ clause of the Fourteenth Amendment.

Affirmative action

Even though it offered a starting point, the Fourteenth Amendment was seen not to be enough to curb discrimination and racial segregation. More positive measures were needed to protect minority groups in the US.

“Affirmative Action refers to a set of practices undertaken… to go beyond non-discrimination, with the goal of actively improving the economic status of minorities and women with regard to employment, education, and business ownership and growth” (Holzer & Neumark 2005, Par. 1).

Affirmative Action was first introduced by President John F. Kennedy in the 1961 Executive Order 10925. Thereafter, several more orders were passed to deal with discrimination in employment. Other laws dealing with equal protection were subsequently enacted to outlaw discrimination such as the 1964 Civil Rights Act. Title II of the Act prohibited discrimination in public accommodations while title IV prohibited race and sex discrimination in employment.

Courts too have joined hands in the fight. For example in Davis vs. Bakke (1978), where the court found that Bakke had been denied equal protection of the law by the University of California by being refused admission in the school even though his grades were better than the minority’s admitted. This was done in line with a two-track admission system for blacks and whites. Even thought the decision overruled the affirmative action policy, it was viewed as a victory to proponents of affirmative action because it was a fight against racial segregation.

Affirmative action-together with anti-discrimination laws and legislation-has rendered rights of minority groups in the labor market as well as public academic institutions more apparent. Therefore we cannot bow to the critics propositions that affirmative action promotes discrimination and racism.

“Laws barring race- or sex-conscious behavior in hiring, promotions, and discharges are likely to undermine not only explicit forms of Affirmative Action, but also any prohibitions of discrimination that rely on disparate impact analyses for their enforcement” (Holzer and Neumark, 2006, Par, 11).

Conclusion

The Fourteenth amendment has been classified as the most far-reaching amendment in the history of the US constitution especially to the minority groups. “The Fourteenth Amendment itself was the fruit of a necessary and wise solution for a comparable problem” (Howard 2000).

It came at a time when civil rights movements were at the peak and has contributed significantly to the redemption of minority from past discriminatory activities. It created awareness to the whole world on the injustices of racial segregation and prompted the public to take corrective measures, which have no doubt yielded a lot of success.

References

Brown V Board of Education. (1945). Massive Resistance” to Integration. [Online].Retrieved on June 29, 2011 from http://www.crmvet.org/tim/timhis54.htm#1954bvbe

Carl. V. (1982). Allsup, Hernandez V state of Texas. Texas. Texas State Historical Association

Gitlow V. New York. (2011). In Encyclopedia Britannica. [Online]. Retrieved on June 29, 2011 from http://www.britannica.com/EBchecked/topic/1508178/Gitlow-v-New-York

Holzer H. and Neumark D. (2006). Journal of Policy Analysis and Management: Affirmative Action: What do we know? Published by Urban Institute

Howard. N.M. (2000). The Amendment that Refused to Die: Equality and Justice Deferred: The History of the Fourteenth Amendment. Madison Books

Peter, M. (1998). Princeton university law Journals: Past and future of Affirmative action

Volume I. Issue 2 Springs. [Online]. Retrieved on June 29, 2011
http://www.princeton.edu/~lawjourn/Spring98/moyers.html