Download this Paper Open PDF in Browser

Bolling, Equal Protection, Due Process, and Lochnerphobia

35 Pages Posted: 20 Jul 2005 Last revised: 11 Mar 2017

David E Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Date Written: July 14, 2005

Abstract

In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions.

The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court stands accused of inventing the idea that due process includes a guarantee of equal protection equivalent to that of the Fourteenth Amendment's Equal Protection Clause.

A careful analysis of Bolling v. Sharpe, however, reveals some surprises. First, the almost universal portrayal of Bolling as an opinion relying on an equal protection component of the Fifth Amendment's Due Process Clause is incorrect. In fact, Bolling was a substantive due process opinion with roots in Lochner era cases such as Buchanan v. Warley, Meyer v. Nebraska, and Pierce v. Society of Sisters. The Court, however, chose to rely explicitly only on Buchanan because the other cases were too closely associated with Lochner.

Another surprise is that the proposition that Bolling has come to stand for, that the Fifth Amendment prohibits discrimination by the Federal Government, was not simply made up by the Supreme Court, but has a basis in longstanding precedent.

Finally, Bolling is an important example of the distorting effect of Lochnerphobia on Supreme Court jurisprudence. Bolling would have been a much stronger opinion had it been willing to explicitly rely on Lochner era precedents such as Meyer, and to employ a more explicitly Lochnerian view of the Due Process Clause.

Keywords: Civil rights, Equal protection

JEL Classification: J70, J71

Suggested Citation

Bernstein, David E, Bolling, Equal Protection, Due Process, and Lochnerphobia (July 14, 2005). George Mason Law & Economics Research Paper No. 05-14. Available at SSRN: https://ssrn.com/abstract=761926 or http://dx.doi.org/10.2139/ssrn.761926

David Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)

HOME PAGE: http://mason.gmu.edu/~dbernste

Paper statistics

Downloads
511
Rank
45,196
Abstract Views
6,066