Commentary: ‘Divisive concepts’ bill finds no basis in equal protection

June 16, 2021 6:15 am
Exterior of the U.S. Supreme Court

This week, the U.S. Supreme Court hears oral arguments in a case that could overturn Roe v. Wade. (

New Hampshire Senate Majority Leader Jeb Bradley has stressed that the “divisive concepts” bill under consideration by the New Hampshire Legislature would only preclude state government from instructing that some people are oppressive, or enjoy social advantages, merely because of an inherent characteristic, like race. Bradley described the law as “affirm[ing] the 14th Amendment of the Constitution that we’re equal under the law.”

Bradley’s statement betrays a common misconception about the meaning of many well-known provisions of the U.S. Constitution – namely, that the text applies literally. While there are some justices on the current Supreme Court who espouse the virtues of interpreting the text according to either its original meaning at the time of adoption, or the meaning its framers had in mind, none adhere to the view that the text should always be applied literally.

Consider the First Amendment’s command that “Congress shall make no law . . . abridging the freedom of speech.” As law students learn, “no law” does not mean no law. The Supreme Court has allowed government regulations relating to the time, place, and manner of speech. Such rules inevitably affect the ability of some speakers to express themselves. You might have a burning desire to let the world know your thoughts on a particular issue through a fireworks display, but that does not mean you get to launch fireworks whenever, wherever, and however you like.

More pointedly, as former New Hampshire and United States Supreme Court Justice David Souter has explained, the right to free speech has never been viewed by the court as absolute: that claim fails when “other values crop up in potential conflict with an unfettered right to publish,” such as, for example, “the value of security for the nation and the value of the president’s authority in matters foreign and military.”

So, too, the 14th Amendment’s equal protection clause, which today does not literally guarantee that all citizens must be treated alike. Rather, with the exception of legislative classifications based upon immutable characteristics, like race, the courts generally allow legislatures to discriminate if there is a rational basis for doing so. Even where immutable characteristics are concerned, the courts have allowed the use of race as a factor in exceptional cases to promote particularly compelling governmental interests.

Ironically, in the most notorious equal protection case, Plessy v. Ferguson, the court sought to apply the term literally. In its 1896 decision, the court upheld a law mandating separate train compartments for white and black travelers. The conclusion reflects the kind of superficial approach to equality that would be promoted by the divisive concepts bill – a view of equality that ignores the fact that, as result of slavery and oppression, in 1896 the underlying situations of white and black citizens were not in any substantive way the same.

Justice John Marshall Harlan, dissenting in Plessy, had a more nuanced understanding of equal protection. “[I]n the eye of the law,” he wrote, “there is in this country no superior, dominant, ruling class of citizens. There is no caste here.” Harlan believed, in other words, that equal protection required that courts analyze the circumstances and context underlying claims of inequality.

The court tacitly embraced Harlan’s view in Brown v. Board of Education. There, the court assumed that the separate education provided black and white children was literally the same, but nonetheless held their experiences were not equal. The formal equality of the educational programs belied the fact that the separation of schoolchildren was part of a legal structure aimed at perpetuating racial hierarchy, with the accompanying social advantages enjoyed by the group on top. In evaluating the constitutionality of racial classifications since Brown, the courts have moved past a simplistic focus on literal equality.

At the end of the day, while there may well be reasons to support the divisive concepts proposal, affirmation of the principles underlying the constitutional commitment to equal protection is not one of them.

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Lawrence Friedman
Lawrence Friedman

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author of "The New Hampshire State Constitution" (second edition).