In 1883 the Supreme Court upheld a state law prohibiting intermarriages between blacks and whites. The logic: punishment was the same for offenders of both races. Ten years earlier, law-school graduate Myra Bradwell was denied admission to the bar in Illinois. The reasoning: “Proper timidity and delicacy evidently unfits [women] from many of the occupations of civil life.”
Although diverse cases, they shared a common bond. Both denied equality yet both followed the 1868 ratification of the Equal Protection Clause of the Fourteenth Amendment.
In Even the Children of Strangers, Donald W. Jackson unravels the complex meanings of equal protection doctrine and its various interpretations over the last 134 years. Characterized by anything but consensus, constitutional law and democratic theory have been tested in the Supreme Court’s evolving applications of such landmark decisions as Plessy v. Ferguson (“separate but equal”), Brown v. Board of Education, and the Bakke case.
Jackson explores the conceptual basis for a variety of “pecking orders” (or discriminations)—most notably race and sex, but also wealth, occupation, and education—that have been used to justify special privilege, status, or rewards. He also examines the tensions between equal protection and American individualism. After making a comparison between U.S. equal protection laws with those in Canada and India and certain provisions of international law, he offers possible ways to resolve apparently intractable conflicts between individualism and affirmative action policies.
An assumption of human equality is always appropriate and the burden of proof should always be on those who want to justify treating people differently, for whatever reason, Jackson argues. Our historic difficulty, he contends, has not been with the principle of equality but with the inferior reasons we have accepted for deviating from that principle.
“Human equality and its conceptual companions, human brotherhood and sisterhood, often appear to us as ‘strangers’ these days,” Jackson writes. “The faces of ‘strangers’ such as equality and brotherhood are usefully evocative, but only when we bother to notice them.”
Deliberately cast for the general reader, this study should considerably widen the public understanding of equality and raise the level of the debates that surround it.
