ABSTRACT

Americans today might glibly tell a pollster that they favor both "liberty" and "equality", but that response obscures an unmistakable tension between those cherished values. As the founders recognized, emphasis on individual liberty promotes inequality among individuals; measures to promote equality constrict individual liberty. The command of equal protection may sound simple enough, but its meaning continues to spark intense debate both within the Court and throughout the nation. Affirmative action will undoubtedly continue to vex the Court. Indeed, until recent decades, the Supreme Court was inhospitable to litigants who sought protection under the clause to any meaningful degree, outside the contexts of racial discrimination and state regulation of business. As the distinction between de jure and de facto segregation illustrates, the role of government in promoting segregation is crucial to a violation of the equal protection clause. Legislation has become as important as the Constitution in fighting discrimination.