Equal Justice Under Law, From the Fourteenth Amendment to the Courthouse

Four words are carved into the marble above the main entrance of the Supreme Court building: Equal Justice Under Law. Notice what is not carved there. It does not say "Justice, Depending on Your Zip Code." It does not say "Justice, Subject to Your Résumé," or "Justice, Unless the Defendant Is Somebody's Friend." The sculptors had a limited amount of marble, and they spent it on the idea that the law applies to everyone the same way.

It is an easy sentence to admire and a hard one to live by. Every government in history has promised equal justice, and nearly every government in history has found reasons to make exceptions. The American experiment is the attempt to write the promise into a constitution and to build institutions that keep it when keeping it is inconvenient. This post follows the idea from the Founders' debates to the courthouse steps, defines what it means and what it does not, and argues that its violation, in either direction and against anyone, is the quickest way to ruin a republic.

Define the term: equal treatment, not equal outcomes

Let us start with definitions, because this phrase is the victim of a great deal of loose talk.

Equal justice under law means that the same rules apply to every person who comes before the legal system, regardless of wealth, rank, party or fame. The law is the master. The citizen, the senator and the sovereign are subjects of it.

It means equal treatment before the law. It does not mean equal outcomes. A rich man and a poor man who are tried for the same crime under the same law, with the same burden of proof and the same right to a lawyer, have received equal justice even if one is acquitted and the other convicted, because the facts were different or because a jury believed a witness. Equal outcomes would require a system that ignored facts, and a system that ignores facts is not justice at all. This distinction is not a technicality, and it is not a conservative evasion. It is the difference between a courtroom and a lottery.

Three premises follow from the definition.

1. The law must be general. A rule that names a person or a class for special treatment is not a law but a decree, and the Constitution forbids at least the most extreme form: Article I, Section 9 bars bills of attainder, which are legislative acts that declare a particular person guilty and punish him without a trial.
2. The law must be applied evenly. A fair rule enforced unfairly is an unfair rule.
3. The people who make the law must live under it. If the rulers exempt themselves, the rest of us have a master, not a government.

Madison on the legislator who lives under his own laws

The third premise comes from the Founding. In Federalist No. 57, James Madison, writing as Publius in 1788, argued that one of the safeguards of republican government is that the members of the legislature are bound by the laws they pass. A legislature, he wrote, that makes no law which will not have "its full operation on themselves and their friends, as well as on the great mass of the society," is held to the people by a strong bond. He treated this as one of the chief protections against tyranny, because a lawmaker who must live under a rule has a reason to write it well.

That idea was stronger in the text than in the practice. For generations, Congress exempted itself from a number of laws that it applied to private employers, including workplace and anti-discrimination statutes. It took until the Congressional Accountability Act of 1995, signed on January 23, 1995, to apply a set of those laws to the legislative branch. It is a bipartisan achievement worth remembering, and it is a quiet reminder that the temptation to exempt oneself never goes away. The good constitutional habit is to ask of every law: does it apply to the people who wrote it?

Equal protection, written into the Constitution

The Founders' Constitution did not contain the phrase "equal protection." It could not honestly claim equality while slavery existed, and the Constitution's authors compromised on slavery in ways that do not survive moral scrutiny. The Declaration of Independence had announced the principle, "that all men are created equal," and Abraham Lincoln spent a career arguing that the Declaration was the standard to which the Constitution should be held. The principle was, in his phrase, a promise to be fulfilled, and it took a civil war to begin the work.

The Fourteenth Amendment, ratified on July 9, 1868, made the promise explicit in the Constitution's text. Section 1 provides, in the clause that has since carried a great deal of the law's weight: "nor shall any State deny to any person within its jurisdiction the equal protection of the laws." Together with the Due Process Clause in the same section, this was a command to the states, which had been the instruments of the worst inequality. It was written by the Reconstruction Congress to ensure that the freed slaves would not be left, in law, as second-class persons.

Notice what the clause protects: any person, not only citizens, and not only those of one race. The Framers of the Amendment were well aware of the particular injustice they were addressing, but they wrote in general terms, and the generality is the point. A principle that can be limited to one group can be limited to another.

When the clause means what it says: Yick Wo

The Supreme Court's early encounters with the clause were mixed, and some were shameful. But one decision shows exactly how the idea works in the context of enforcement, and it is directly relevant to our subject. In Yick Wo v. Hopkins (1886), the Court considered a San Francisco ordinance that required laundries in wooden buildings to obtain a permit from the city's board of supervisors. The ordinance was neutral on its face. In practice, the board granted permits to nearly all applicants who were not Chinese and denied them to almost every Chinese applicant, though the Chinese laundries had been operating safely for years.

The Court held that this violated the Equal Protection Clause. Justice Stanley Matthews wrote the opinion, and its central passage has become the classic statement of the principle:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

Read the phrase "an evil eye and an unequal hand." It tells you that the Constitution cares about enforcement as much as about text. A fair statute is only half the job. The other half is the person who decides whom to apply it to. That half is where equal justice lives or dies.

What the Court has said about selective prosecution

Yick Wo concerned a licensing scheme. The same principle governs criminal charging decisions, though the Court has set a high bar for proving a violation. In Wayte v. United States (1985) the Court held that a prosecutor's decision to prosecute is subject to ordinary equal protection standards, and that a defendant claiming selective prosecution must show that the decision had a discriminatory effect and was motivated by a discriminatory purpose. In United States v. Armstrong (1996) the Court held that a defendant must present some evidence of both discriminatory effect and discriminatory intent before he can obtain discovery on such a claim. Prosecutors have broad discretion, and the courts are reluctant to second-guess it.

That caution has good reasons behind it. If every charging decision could be challenged by demanding the prosecutor's files, prosecutors would be unable to function. But the high bar has a consequence: the main check on selective enforcement is not the courtroom. It is the culture of the office, the oversight of elected officials, and the vigilance of the public. The law sets the floor, and the citizens must police the ceiling. We take up one aspect of this in Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them.

The judge's oath

There is one more text worth reading, because it shows how old the principle is in American law. The oath of every federal judge, set out in the Judiciary Act of 1789 and still codified at 28 U.S.C. 453, requires a judge to swear that he will "administer justice without respect to persons, and do equal right to the poor and to the rich."

"Without respect to persons" is an old phrase. It echoes a very old source. The book of Leviticus commands: "Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbour." Notice the symmetry. A judge must not favor the mighty, which is the obvious sin. He must not favor the poor either. Justice is not a service for the sympathetic. It is a duty to the truth and to the rule.

That symmetry is the heart of the matter, and it is the part that political tribes forget when their side is the one in trouble. We have all heard someone say, in effect, that equal justice is wonderful and that the other party is plainly guilty. Any principle that applies only to the other team is a weapon, not a principle.

The right to counsel as equal justice for the poor

If equal justice means the poor man gets the same law as the rich man, it must also mean he can afford to defend himself. In Gideon v. Wainwright (1963), the Supreme Court unanimously held that the Sixth Amendment's guarantee of counsel applies to state felony defendants who cannot afford a lawyer, and that the state must provide one. Justice Hugo Black's opinion reasoned that in our adversary system a person hauled into court cannot be assured a fair trial unless counsel is provided. The decision was a direct application of the principle: a courtroom in which the prosecution has a trained lawyer and the defendant has none is a contest in name only.

Conservatives sometimes pass quickly over Gideon. They should not. A government powerful enough to put a man in prison is a government that should be forced, by the Constitution, to give that man a fair fight. That is not a leftist idea. It is the Sixth Amendment, written by the generation that had lived under general warrants and royal courts.

The steelman: isn't equal justice a myth?

State the cynic's case at full strength. It goes like this: equal justice under law is a noble phrase and a false description. Wealthy defendants hire the best lawyers. Powerful people get deals that ordinary people never see. Prosecutors choose their targets, and the choices track politics. Juries bring their own biases. Marble inscriptions are cheap, and the criminal justice system, from the cop on the corner to the white-shoe law firm, is full of discretion that operates in the shadows. If equal justice exists, it exists as an aspiration, and the aspiration is often betrayed.

I do not dispute the facts in that paragraph. Discretion is everywhere. Money buys better representation. Power buys access. Anyone who has watched the system at work knows it.

Here is the answer, in numbered points.

1. The existence of a violation does not refute a standard. We know that equal justice is violated because we have a standard against which to measure the violation. A society without the principle would not have a word for the offense. The cynic's complaint is itself an appeal to equal justice.
2. The alternative is worse. If the principle is dropped as unrealistic, the rule becomes "justice for those with the power to demand it." That is not a more honest system. It is a more brutal one, and the people it punishes are the ones with the fewest friends.
3. Institutions can be built to narrow the gap. The right to appointed counsel, the jury of one's peers, the requirement that a judge give reasons, the presumption of innocence, the protection against double jeopardy and the Equal Protection Clause are not decorations. Each of them was designed to make the promise less hollow, and each does some work.
4. The standard has to be held by citizens. No document enforces itself. The jury box, the ballot box and the public meeting are where ordinary people hold their officials to the text.

Why selective prosecution of anyone corrupts everyone

Now the argument I most want to press. Selective prosecution, charging some people and sparing others for reasons other than the facts and the law, is a poison that works in every direction, and the people who think it only works against their enemies are the people who will eventually drink it.

If a prosecutor may decline to charge a class of offenders because of their politics, he may also charge a class of opponents because of theirs. The power to protect friends is the same as the power to persecute enemies, and the person who holds it will not stay in the hands you like. The office outlives the officeholder. A principle you abandon when it is convenient is a principle you will not have when you need it.

That is why conservatives, who believe in the rule of law as a bulwark against arbitrary power, have to hold the line against every form of it, including the forms that happen to advantage conservatives. A prosecutor who takes a case because the target is on the wrong team has violated the oath no less than one who drops a case because the defendant is on the right one. The republic is not safe because its officials are good. It is safe because its rules apply to them too, as Madison argued.

There is a related point about what equal justice does not require. It does not require that every offender be charged for every offense, because resources are limited and prosecutors must set priorities. It does not forbid a department from deciding to focus on violent crime. Equal justice forbids deciding by who the defendant is rather than by what he did. The line is between priorities, which are open and applied to categories of conduct, and favoritism, which is secret and applied to persons.

What equal justice asks of citizens

The principle is an inheritance, and it is kept by use. Here is what it asks of an ordinary citizen.

• Serve on a jury. The jury is the equal-justice institution that every citizen can enter. A person who dodges jury duty has declined a part of self-government. We trace the jury's long history in Twelve Strangers, How Trial by Jury Crossed the Atlantic to America.
• Read the record of the people who charge. District attorneys are mostly elected. Find out how yours decides what to prosecute. A practical guide is How to Read Your District Attorney's Record Before You Vote.
• Apply the test to your own side. When an official on your team is accused, ask what you would say if the official were on the other team, and say it.
• Defend the process even for people you dislike. A right that applies only to the likable is a privilege.

The principle also reaches into how we think about the justice system as a whole. If you want to see how much depends on trusting that the rules are the same for all, read the debate over The Case Against Cashless Bail Starts With the Victim, Not the Defendant, where the question of who waits in jail and who goes home turns on the very issue of treating like cases alike.

The case in brief

1. Equal justice under law means the same rules for every person, with equal treatment rather than equal outcomes, and it is a principle older than the Constitution.
2. Madison argued in Federalist No. 57 that legislators should live under the laws they pass, the Fourteenth Amendment of 1868 added a promise of "the equal protection of the laws," and federal judges swear to "do equal right to the poor and to the rich."
3. Yick Wo v. Hopkins (1886) showed that a fair law enforced "with an evil eye and an unequal hand" violates the Constitution, and Gideon v. Wainwright (1963) showed that the poor man needs a lawyer for the promise to mean anything.
4. The cynic is right that the system falls short, but a standard is what lets us measure the failure, and the alternative to the standard is a government of favorites.
5. Selective prosecution of anyone, in either direction, corrupts the whole system, because the power to shield friends is the power to hunt enemies.

What you can do: when you are called for jury duty, show up, and before the next election, read how your county prosecutor describes the office's charging policies.