Equal Protection as a Substantive Component of Due Process Clause

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Literally speaking, the Fifth Amendment, unlike the Fourteenth Amendment, “contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” 1 Footnote
Detroit Bank v. United States, 317 U.S. 329, 337 (1943) ; Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941) . Nevertheless, “Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” 2 Footnote
Buckley v. Valeo, 424 U.S. 1, 93 (1976) ; Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) ; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214–18 (1995) . Even before the Court reached this position, it had assumed that “discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.” 3 Footnote
Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937) . See also Currin v. Wallace, 306 U.S. 1, 13–14 (1939) . The theory that was to prevail seems first to have been enunciated by Chief Justice Taft, who observed that the Due Process and Equal Protection Clauses are “associated” and that “[i]t may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. . . . [Due process] tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not withhold. Our whole system of law is predicated on the general, fundamental principle of equality of application of the law.” 4 Footnote
Truax v. Corrigan, 257 U.S. 312, 331 (1921) . See also Hirabayashi v. United States, 320 U.S. 81, 100 (1943) . Thus, in Bolling v. Sharpe ,5 Footnote
347 U.S. 497, 499–500 (1954) . a companion case to Brown v. Board of Education ,6 Footnote
347 U.S. 483 (1954) . With respect to race discrimination, the Court had earlier utilized its supervisory authority over the lower federal courts and its power to construe statutes to reach results it might have based on the Equal Protection Clause if the cases had come from the states. E.g., Hurd v. Hodge, 334 U.S. 24 (1948) ; Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944) ; Railroad Trainmen v. Howard, 343 U.S. 768 (1952) . See also Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) . the Court held that segregation of pupils in the public schools of the District of Columbia violated the Due Process Clause. “The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.” 7 Footnote
Bolling , 347 U.S. at 499 .

“Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.” 8 Footnote
Id. at 499–500 .

“In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” 9 Footnote
Id. at 500 .

In subsequent cases, the Court has applied its Fourteenth Amendment jurisprudence to federal legislation that contained classifications based on sex10 Footnote
Frontiero v. Richardson, 411 U.S. 677 (1973) ; Califano v. Goldfarb, 430 U.S. 199 (1977) . But see Rostker v. Goldberg, 453 U.S. 57 (1981) ; Califano v. Jobst, 434 U.S. 47 (1977) . and whether a person was born to married parents,11 Footnote
Compare Jiminez v. Weinberger, 417 U.S. 628 (1974) , with Mathews v. Lucas, 427 U.S. 495 (1976) . and that set standards of eligibility for food stamps.12 Footnote
Department of Agriculture v. Murry, 413 U.S. 508 (1973) . See also Department of Agriculture v. Moreno, 413 U.S. 528 (1973) . However, almost all legislation involves some degree of classification among particular categories of persons, things, or events, and, just as the Equal Protection Clause itself does not outlaw “reasonable” classifications, neither is the Due Process Clause any more intolerant of the great variety of social and economic legislation typically containing what must be arbitrary line-drawing.13 Footnote
Richardson v. Belcher, 404 U.S. 78, 81 (1971) ; FCC v. Beach Communications, 508 U.S. 307 (1993) (exemption from cable TV regulation of facilities that serve only dwelling units under common ownership); Lyng v. Castillo, 477 U.S. 635 (1986) (Food Stamp Act limitation of benefits to households of related persons who prepare meals together). With respect to courts and criminal legislation, see Hurtado v. United States, 410 U.S. 578 (1973) ; Marshall v. United States, 414 U.S. 417 (1974) ; United States v. MacCollom, 426 U.S. 317 (1976) . Thus, for example, the Court has sustained a law imposing greater punishment for an offense involving rights of property of the United States than for a like offense involving the rights of property of a private person.14 Footnote
Hill v. United States ex rel. Weiner, 300 U.S. 105, 109 (1937) . See also District of Columbia v. Brooke, 214 U.S. 138 (1909) ; Panama R.R. v. Johnson, 264 U.S. 375 (1924) ; Detroit Bank v. United States, 317 U.S. 329 (1943) . A veterans law that extended certain educational benefits to all veterans who had served “on active duty” and thereby excluded conscientious objectors from eligibility was held to be sustainable, its being rational for Congress to have determined that the disruption caused by military service was qualitatively and quantitatively different from that caused by alternative service, and for Congress to have so provided to make military service more attractive.15 Footnote
Johnson v. Robison, 415 U.S. 361 (1974) . See also Schlesinger v. Ballard, 419 U.S. 498 (1975) (military law that classified men more adversely than women deemed rational because it had the effect of compensating for prior discrimination against women). Wayte v. United States, 470 U.S. 598 (1985) (selective prosecution of persons who turned themselves in or were reported by others as having failed to register for the draft does not deny equal protection, there being no showing that these men were selected for prosecution because of their protest activities).

“The federal sovereign, like the States, must govern impartially. . . . [B]ut . . . there may be overriding national interests which justify selective federal legislation that would be unacceptable for an individual State.” 16 Footnote
Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976) . For example, the power to regulate immigration has permitted the federal government to discriminate on the basis of alienage, at least so long as the discrimination satisfies the rational basis standard of review. See Mathews v. Diaz, 426 U.S. 67, 79–80, 83 (1976) (holding that federal conditions upon alien eligibility for public assistance were not “wholly irrational,” and observing that “[in] the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens . . . The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is ‘invidious.’” ). Nonetheless, with regard to statutes that touch upon immigration-related matters but do not address the entry or exclusion of aliens, the Court has suggested that if such a law discriminates on the basis of suspect factors other than alienage or national origin a more “exacting standard of review” may be required. See Sessions v. Morales-Santana , 137 S. Ct. 1678, 1693–94 (2017) Horne (distinguishing between immigration and citizenship contexts, and applying heightened scrutiny to hold that a derivative citizenship statute which discriminated by gender violated equal protection principles). The paramount federal power over immigration and naturalization is the principal example, although there are undoubtedly others, of the national government's being able to classify upon some grounds—alienage, naturally, but also other suspect and quasi-suspect categories as well—that would result in invalidation were a state to enact them. The instances may be relatively few, but they do exist.

Footnotes 1 Detroit Bank v. United States, 317 U.S. 329, 337 (1943) ; Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941) . 2 Buckley v. Valeo, 424 U.S. 1, 93 (1976) ; Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) ; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214–18 (1995) . 3 Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937) . See also Currin v. Wallace, 306 U.S. 1, 13–14 (1939) . 4 Truax v. Corrigan, 257 U.S. 312, 331 (1921) . See also Hirabayashi v. United States, 320 U.S. 81, 100 (1943) . 5 347 U.S. 497, 499–500 (1954) . 6 347 U.S. 483 (1954) . With respect to race discrimination, the Court had earlier utilized its supervisory authority over the lower federal courts and its power to construe statutes to reach results it might have based on the Equal Protection Clause if the cases had come from the states. E.g., Hurd v. Hodge, 334 U.S. 24 (1948) ; Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944) ; Railroad Trainmen v. Howard, 343 U.S. 768 (1952) . See also Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) . 7 Bolling , 347 U.S. at 499 . 8 Id. at 499–500 . 9 Id. at 500 . 10 Frontiero v. Richardson, 411 U.S. 677 (1973) ; Califano v. Goldfarb, 430 U.S. 199 (1977) . But see Rostker v. Goldberg, 453 U.S. 57 (1981) ; Califano v. Jobst, 434 U.S. 47 (1977) . 11 Compare Jiminez v. Weinberger, 417 U.S. 628 (1974) , with Mathews v. Lucas, 427 U.S. 495 (1976) . 12 Department of Agriculture v. Murry, 413 U.S. 508 (1973) . See also Department of Agriculture v. Moreno, 413 U.S. 528 (1973) . 13 Richardson v. Belcher, 404 U.S. 78, 81 (1971) ; FCC v. Beach Communications, 508 U.S. 307 (1993) (exemption from cable TV regulation of facilities that serve only dwelling units under common ownership); Lyng v. Castillo, 477 U.S. 635 (1986) (Food Stamp Act limitation of benefits to households of related persons who prepare meals together). With respect to courts and criminal legislation, see Hurtado v. United States, 410 U.S. 578 (1973) ; Marshall v. United States, 414 U.S. 417 (1974) ; United States v. MacCollom, 426 U.S. 317 (1976) . 14 Hill v. United States ex rel. Weiner, 300 U.S. 105, 109 (1937) . See also District of Columbia v. Brooke, 214 U.S. 138 (1909) ; Panama R.R. v. Johnson, 264 U.S. 375 (1924) ; Detroit Bank v. United States, 317 U.S. 329 (1943) . 15 Johnson v. Robison, 415 U.S. 361 (1974) . See also Schlesinger v. Ballard, 419 U.S. 498 (1975) (military law that classified men more adversely than women deemed rational because it had the effect of compensating for prior discrimination against women). Wayte v. United States, 470 U.S. 598 (1985) (selective prosecution of persons who turned themselves in or were reported by others as having failed to register for the draft does not deny equal protection, there being no showing that these men were selected for prosecution because of their protest activities). 16 Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976) . For example, the power to regulate immigration has permitted the federal government to discriminate on the basis of alienage, at least so long as the discrimination satisfies the rational basis standard of review. See Mathews v. Diaz, 426 U.S. 67, 79–80, 83 (1976) (holding that federal conditions upon alien eligibility for public assistance were not “wholly irrational,” and observing that “[in] the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens . . . The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is ‘invidious.’” ). Nonetheless, with regard to statutes that touch upon immigration-related matters but do not address the entry or exclusion of aliens, the Court has suggested that if such a law discriminates on the basis of suspect factors other than alienage or national origin a more “exacting standard of review” may be required. See Sessions v. Morales-Santana , 137 S. Ct. 1678, 1693–94 (2017) Horne (distinguishing between immigration and citizenship contexts, and applying heightened scrutiny to hold that a derivative citizenship statute which discriminated by gender violated equal protection principles).

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