The Fourteenth Amendment promised equal protection in 1868.
For a century, “equal” was bent to mean “separate,” then “sorted.”
In 2023, the Supreme Court returned to the plain word.
By Jeff Bayard | Does the Constitution Really Say? — Part 10
This is the tenth part of Does the Constitution Really Say?, a Virginia Christian Alliance series on the Supreme Court cases where the original meaning of the Constitution was quietly swapped for something else. Earlier parts asked what happens when:
- a developer can seize your house — and call it “public use”
- the government can punish you for growing food on your own land
- the state can shut you out of your own trade
- your country can strip your citizenship as a punishment
- your town can be ordered to strip faith from its schools and public square
- a coach can be fired for kneeling to pray after a game
- officials can ban words simply for being “offensive”
- the government can track your every move without a warrant
- your right to keep and bear arms can be treated as the militia’s, not yours
This week we turn to the promise at the heart of Reconstruction — and ask, plainly: does the Constitution really say the government can treat you by your group?
Same Work, a Different Yardstick
Picture a high-school senior filling out a college application. She has good grades. She wrote her essay three times to get it right. She did the volunteer hours, the late nights, the hard classes.
Then she learns that two students with the very same file can be weighed differently — not for anything they did, but for a box they checked. One is helped by it. One is hurt by it. Neither earned the difference. It was assigned to them before they were born.
She is not asking for a favor. She is asking a fair question: is she being judged as a person, or as a category? And when she goes looking for the answer, she finds a promise in the Constitution written for exactly this moment — and a long story of how that promise got bent.
So this is the question worth asking, plainly. Does the Constitution really say the government can treat you by your group? And if the words still mean what they meant in 1868, there is only one honest way to change them — a way almost no one is willing to take. Hold that thought. We will come back to it.
What the Words Meant
The promise is in the Fourteenth Amendment, ratified in 1868, right after the Civil War. Its words are plain:
No State shall … deny to any person within its jurisdiction the equal protection of the laws.
Look at who it protects: “any person.” Not a race, not a class — a person. The Amendment was written to lift the freed slave to full and equal standing before the law, and to bury the Black Codes that had treated him as a lesser kind of citizen. Its whole point was that the law must stop sorting people by color and start treating each one the same.
The men who wrote it said so out loud. When the Supreme Court looked back at the record in 2023, it found that the supporters of the Equal Protection Clause described its foundational principle as “not permitting any distinctions of law based on race or color.” That was the original promise: one rule, applied to every person, regardless of the group he was born into.
Equal protection meant equal treatment. A person was to be seen as a person.
What the Words Now Mean
That promise has been bent twice.
The first bend came fast. In Plessy v. Ferguson (1896), the Court decided that a state could force black citizens into separate railroad cars and still claim it was giving them “equal protection.” The magic phrase was “separate but equal.” On paper, equal. In life, a badge of inferiority. Only one justice saw it clearly. In a lone dissent, Justice John Marshall Harlan wrote the line the country would take another sixty years to accept: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
The second bend is the one we live in now, and it runs the other direction. Over the last decade especially, “equal” has quietly been redefined again — this time from equal treatment to equal outcomes. The new idea, often called “equity,” holds that because groups end up with different results, government and its institutions should sort people by group on the front end to even the results on the back end. A federal order in 2021 built this directly into the machinery of government, directing agencies to steer benefits by group identity. (That particular order was rescinded in 2025, but the idea long outlived the paperwork.)
Notice the move. The first bend used the word “equal” to justify keeping the races apart. The second uses it to justify sorting them on purpose. Both leave the plain promise — that the law sees a person, not a category — lying on the ground.
What Happened Next: The Word Returns
Twice now, the Court has come back to the word.
The first return is famous. In Brown v. Board of Education (1954), the Court buried “separate but equal,” ruling that separating schoolchildren by race is not and cannot be equal. Harlan’s lone dissent had finally become the law.
The second return is recent. In Students for Fair Admissions v. Harvard (2023), the Court looked at colleges that scored applicants partly by race — a system that, the plaintiffs showed, quietly counted against Asian American students who had done everything asked of them. The Court held that sorting applicants by race violates the Equal Protection Clause. Writing for the Court, Chief Justice Roberts put the principle simply: “Eliminating racial discrimination means eliminating all of it.” A student, he wrote, “must be treated based on his or her experiences as an individual—not on the basis of race.”
That is the original promise, restored: the law must see the person.
The Strongest Argument the Other Way
The other side of this is not wicked, and it is not stupid. It deserves to be stated at its strongest.
The disparities are real. Generations of open, legal discrimination — slavery, then segregation, then a hundred smaller injustices — left real gaps in wealth, schooling, and opportunity that did not vanish when the laws changed. A purely “color-blind” rule, applied the day after a century of color-coded oppression, can freeze that head start and that hardship in place and call it fair. And here is the part honest people must reckon with: the same Reconstruction Congress that wrote the Fourteenth Amendment also passed race-conscious measures, like the Freedmen’s Bureau, to help the newly freed. So the founders of equal protection did not think every mention of race was forbidden.
That is a serious argument. Here is the serious answer.
There is a difference between repairing a specific, proven wrong and sorting everyone by group forever. The law has always allowed targeted remedies for identifiable discrimination — help the person who was actually harmed. What it was never meant to allow is a permanent system that treats today’s individual as a stand-in for his group. But suppose you are convinced the promise itself should change — that “equal” ought to mean managed outcomes, not equal treatment. There is an honest way to do that, and the Founders built it into the document: Article V, the amendment process. It is how equal protection got into the Constitution in the first place, and it is how it could be changed again.
That road is steep on purpose. An amendment takes two-thirds of both houses of Congress and the agreement of three-quarters of the states. It is meant to be hard. A fundamental right — the promise that the law will see you as a person — should never turn on a bare majority, a single election, or one president’s pen. The steep climb is not a flaw in the system. It is the system protecting every right you have, including the ones you would fight hardest to keep.
And that is the quiet heart of the matter. The reason a change this deep does not go through Article V is usually that it cannot — it has not won the broad, lasting agreement the Constitution demands. But when a change cannot clear that bar, the honest conclusion is not “so we will find another way.” It is “the country has not agreed to this.” Redefining the word from a bench or an agency is simply what people reach for when they cannot win the argument in the open. And a right that can be redefined without the people’s consent is no longer a right. It is a permission slip.
Did God Really Say?
The oldest trick in Scripture was never a flat denial. In the garden, the serpent did not begin by calling God a liar. He asked a question, then twisted the answer. “Has God indeed said…?” — and a plain word became something to argue away.
Did “equal” really mean the same for every person? — and slowly “equal” came to mean weighed by the group.
Scripture is not neutral here. It commands impartiality, over and over, as a mark of God’s own character. Peter, learning that the gospel is for every nation, says plainly in Acts 10:34 (NKJV): “God shows no partiality.” James is blunter still, warning the church in James 2 not to honor the rich man and shame the poor one: to judge people by their outward standing, he says, is to become “judges with evil thoughts.” Every person is made in the image of God, and stands before Him not as a category but as a soul.
And Scripture is not blind to real injustice — its concern for the poor, the widow, the stranger, and the oppressed runs from Moses to the prophets to Christ Himself. But notice the shape of the biblical remedy: it is impartial justice, not partiality turned around. “You shall do no injustice in judgment,” God tells Israel in Leviticus 19:15; “you shall not be partial to the poor, nor honor the person of the mighty.” Both directions are forbidden. The fence Scripture builds is the same one the Constitution promised: judge each person justly, and do not weigh him by the group he was born into.
What the Citizen Does
Start by knowing the words for yourself. Hillsdale College offers its Constitution 101 course free and online. Hillsdale takes no state or federal money — not even student aid — which keeps its teaching free of political pressure. Dozens of courses, no cost, go at your own pace. Start there.
Then a word to my fellow Virginians, and this time it is not a proud one. On this promise, Virginia was not the model. Virginia was the warning. When the Court ordered schools desegregated, Virginia led the campaign of “Massive Resistance,” closing public schools rather than integrate them. And it was Virginia’s own law against interracial marriage that the Supreme Court struck down in Loving v. Virginia (1967), holding that sorting people’s most basic freedoms by race “violates the central meaning of the Equal Protection Clause.” Virginia had to be corrected — and it was. That is exactly why the principle matters more than any state’s pride: equal protection is a promise no government, ours included, can be trusted to keep on its own.
So when any new policy asks you to accept that a person should be weighed by his group — for a good reason or a bad one — ask the question this series is named for. Does the Constitution really say that? The color of a child is not his character, and the law that forgets it has forgotten its own first promise.
Next time, we turn to a newer word for an old temptation: “malinformation” — true things the government would rather you not say — and the quiet machinery built to manage what you are allowed to hear. Part 11 asks whether the First Amendment really lets the government decide which truths are safe.
Related Reading from the Virginia Christian Alliance
» Does the Constitution Really Say Only the Militia Can Keep and Bear Arms? (Part 9)
» The Laws of Nature and of Nature’s God: An Introduction to the Constitution
