The Nineteenth Amendment, of course, guarantees that there will be equality of voting among the sexes. And, theoretically, the Sixth Amendment in its requirement of an “impartial jury” is a guardian of some equality in the trial situation in federal courts, but unfortunately the record indicates that but too small a measure of equal protection can be expected under this provision.114
It seems very doubtful if equal protection is given an accused tried by jurors all of whom are employed by the prosecuting government. That the demand here for equality before the law bows at other times before the necessities of the moment is well illustrated in the majority state court rule permitting taxpayers to sit as jurors when the governmental unit is being sued in damages by a private litigant.1r5
Within a limited area equality has been guaranteed under many state constitutional uniformity of taxation clauses under which disparate tax burdens have been set aside.””
And, in the area of municipal law, many ordinances imposing inequality of burden or obligation upon non-residents are annulled by state courts under the ultra vires concept, which may seem to be but statutory interpretation, but which is more probably in reality a supra-statutory judicial technique to ensure equality Conclusion Since there is no equal protection clause, as such, binding upon the Federal Government, equality must and will be ensured through the due process clause of the Fifth Amendment.
The due process clause will probably be utilized to guarantee equality in procedural affairs, and there is no reason for preferring the equal protection clause in state trials. The former will probably be little used by the United States Supreme Court to secure equality in substantive law, although there is reason to believe its counterpart in state constitutions will have continued vitality in setting aside unreasonable classifications by the state and municipal governments.
Inequality of freedom of expression will continue to be the particular concern of the First Amendment and, since judicial deference to the legislative or councilmanic will is less here than in the equal protection controversy, there is every reason for the continued resolution of inequalities in communication under the First Amendment.
There is no good reason for reviving the privileges and immunities clause in preference to its companion equal protection clause, unless it is believed that jurisprudentially the claim of artificial persons to equality before the law is less substantial than that of natural persons. Unless “state action” under the equal protection clause can be given a much more expansive and proper interpretation, there will be need to utilize the commerce clause to reach privately-imposed discriminations in transportation.
Until prejudice perpetuated in the precedent of “separate but equal” notions can be discarded, and until our courts and our people more clearly see the wisdom of subordinating provincial norms to the standards of the socio-political group representative of Western civilization, the attainment of real equality by Negroes and aliens whom we have welcomed to our shores will be in doubt.
Since there is considerable opinion that the applicable sections of the United Nations Charter are not selfexecuting, it is probably preferable for a state court to avoid their use and hope to re-educate the United States Supreme Court into a proper interpretation of the equal protection clause, as is seemingly intended by the supreme courts of California and Oregon in invalidating their alien land laws under equal protection.
There is no reason to believe that the equal protection clause is less valuable than the Fifteenth Amendment in securing equality of right to vote, given to the former the same realistic interpretation of state action that has been accorded to the latter.
However, since there is no constitutional requirement of state action implicit in Article One, Section Four, of the Constitution, it reaches any and all impositions of inequality in voting for federal officers, making its use far preferable to utilization of the equal protection clause.
As is illustrated well by decisions of courts in states without equal protection clauses and by federal courts not subject to an equal protection clause, constitutional clauses will be found and judicial tools forged to attain the substantial equality of free and equal men-a necessity fundamental to Western man, basic and inherent in every religion and ethos common to our culture.