ABSTRACT
As Chapter 8 indicated, the Supreme Court initially viewed the Equal Protection Clause simply as a means for prohibiting racial discrimination. In keeping with this understanding, it customarily rejected invitations by counsel to employ the clause to strike down economic and social regulations that introduced distinctions among persons (i.e., that discriminated) on a nonracial basis. Even at the height of the Lochner era, when the justices were willing to rely on the Due Process Clause to invalidate what were thought to be unduly restrictive (and hence arbitrary and capricious) regulations, they flatly refused to consider using the Equal Protection Clause for matters unrelated to race. Clearly stating the Court’s contempt for such equal protection claims, Justice Oliver Wendell Holmes described them in Buck v. Bell (1927) as “the usual last resort of constitutional arguments.”
