The Equal Protection Clause is flawed, so let’s rewrite and amend it.

The Equal Protection Clause of the 14th Amendment exhibits flaws due to its conflation of the notions of equality and equity. It might even overlook equity entirely. Equality suggests everyone, no matter the circumstances, experiences equal treatment. On the other hand, equity ensures everyone possesses the same potential for success, regardless of their starting position.

The writers of the Equal Protection Clause were dealing with widespread racial imbalance at the time, a situation that still exists today. They aimed to ensure that everyone, regardless of race, received equal treatment under the law. This intention, however, ignores the fact that people from diverse origins may require different provisions to have the same chance of success.

Consider, for instance, a financially underprivileged individual. To create the same opportunities a wealthy person has, they might need affordable housing and healthcare. A person with a disability might need ramps and other adjustments to fully engage in society.

The Equal Protection Clause does not automatically address these needs. Consequently, while the law ensures equal treatment, it may unintentionally disadvantage people from lower-income families.