574
Changing the Constitution
and women. In the landmark case of Brown v. Board of Education (1954), the
Supreme Court held that racial segregation in the public schools was discriminatory and therefore contrary to the equal protection of the laws. In
this decision, the Court rejected its earlier holding in Plessy v. Ferguson
(1896) which had maintained that ‘‘separate but equal’’ facilities for whites
and blacks were not discriminatory.
The Equal Protection Clause, as interpreted by the Courts, does not
demand a rigid equality in all respects. The basic test used by the Court
is whether the distinction complained of is ‘‘reasonable.’’ One way of deciding is to determine whether the group singled out favors or opposes
the different treatment. If it tends to favor it, the group may be enjoying
a particular privilege—as suggested, for example, by the military draft,
which in the United States has always excluded women. If the group
selected for unequal treatment tends to oppose it, however, the group
may be experiencing unwarranted discrimination—as suggested by a
law which arbitrarily excludes women or minorities from a certain profession.
Sections 2, 3, and 4 of the Fourteenth Amendment are largely of historical interest today. Section 2 modifies Article I, Section 2, Clause 3 of
the Constitution, which provided that slaves should be counted at threefifths of the number of free persons in apportioning representatives. Section 2 of the Fourteenth Amendment, taking account of the Thirteenth
Amendment abolishing slavery, eliminates the three-fifths clause.
The other provision of this section authorizing Congress to reduce the
number of representatives to which a State is entitled in the House of
Representatives has never been enforced. It was intended to give Congress a retaliatory power against Confederate States which denied blacks
the right to vote. It is also inconsistent with the Nineteenth Amendment,
which extends the franchise to women, and the Twenty-Sixth Amendment, which lowers the voting age to eighteen.
Section 3 of the Fourteenth Amendment, designed by the triumphant
Radical Republicans in Congress to punish the South and prevent any of
its political or military leaders from assuming State or Federal office, rendered most former Confederate officials ineligible to serve in Congress,
the Federal Judiciary, the executive branch of the United States government, the U.S. military, any State office, or in the Electoral College. An-