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Fourteenth Amendment

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Description: Amendment to the U.S. Constitution that provides legal protections for individuals against actions by state governments.


Significance: The Supreme Court used the due process and equal protection clauses of this amendment in order to expand both the number and breadth of rights protecting individuals. More than any other amendment, the Fourteenth provided the basis for the range of rights that Americans came to take for granted during the twentieth century.


The Fourteenth Amendment was ratified after the Civil War (1861-1865) to provide protection for individuals, including the African Americans newly freed from slavery, against actions taken by state governments. Before ratification of the amendment, the rights provisions within the Constitution were aimed at preventing the federal government from violating individuals’ legal protections. There were serious concerns that the former Confederate states might undertake actions that would threaten the liberty of individuals, especially African Americans, who resided within those states. The amendment guarantees three primary rights: due process of law, equal protection of the law, and privileges or immunities of citizens. Section 5 of the amendment also grants Congress the power to enact legislation to enforce the rights specified in the amendment. Because the words describing Fourteenth Amendment rights are so vague, the Supreme Court had to use its interpretive powers to give meaning to the rights contained within it. The Court's first major interpretation of the Fourteenth Amendment was in the Slaughterhouse Cases (1873), in which butchers in New Orleans complained that they had been denied due process, equal protection, and privileges or immunities of citizenship when the State of Louisiana gave one company an exclusive monopoly to slaughter livestock. The Court found that there was no Fourteenth Amendment violation. The justices declared that the equal protection clause was intended to protect newly freed African Americans, not occupational groups such as butchers. They said that the due process clause did not apply and that the privileges or immunities clause was similarly inapplicable. Although the Court's initial interpretation of the Fourteenth Amendment did not identify any specific protections provided for citizens, subsequent cases began to identify how the Fourteenth Amendment protected rights.


The Due Process Clause

During the twentieth century, the Court began to use the Fourteenth Amendment's due process clause as the mechanism for applying the protections of the Bill of Rights against the states. Through a process that scholars call “incorporation,” the Court gradually decided that many provisions of the Bill of Rights, which protect individuals against actions by the federal government, should be incorporated in the due process clause in order to provide protection for individuals against actions by state and local governments. Some justices argued that the Court should declare that all of the rights from the Bill of Rights are contained in the Fourteenth Amendment due process clause. However, most justices preferred to examine each right individually to determine whether that particular right should be applied to state governments. Beginning with the Court's decision in Gitlow v. New York (1925), which determined that the First Amendment's protection for freedom of speech applied to the states through the Fourteenth Amendment's due process clause, the justices examined specific rights from the Bill of Rights in a series of cases extending through the 1960's. By the time the Court declared in Duncan v. Louisiana (1968) that the Sixth Amendment's right to trial by jury was incorporated into the due process clause, the Court had applied nearly the entire Bill of Rights to the states through the incorporation process. Along the way, the Court incorporated the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, the Eighth Amendment prohibition on cruel and unusual punishments, and other important rights. Only a few rights remained unincorporated and still applicable against the federal government only. These rights include the Second Amendment right to bear arms, the Fifth Amendment right to a grand jury, and the Seventh Amendment right to a jury in civil cases. In effect, the Fourteenth Amendment's due process clause served as the vehicle for expanding the scope of constitutional rights so that citizens would enjoy the same protections against all levels of government. In the late nineteenth century and early twentieth century, the Court used the due process clause as a general source of protection for economic liberty. It relied on the Fourteenth Amendment to strike down a variety of state laws seeking to regulate businesses and enhance social welfare. For example, in Lochner v. New York (1905), the Court struck down a state law regulating bakers’ working hours on the grounds that the law violated the due process-based right for workers to freely contract to provide their labor as they wished for their employers. Historians view the Court's decisions as primarily advancing the interests of businesses rather than those of the individual workers whose rights were supposedly violated by the economic regulation and social welfare laws. These decisions viewed the right to due process as a substantive right rather than as merely a guarantee that the government would follow certain processes before affecting individuals’ lives and property. The Court's use of substantive due process theories to protect economic rights disappeared in the late 1930's as the Court's composition changed and other political actors, especially President Franklin D. Roosevelt, grew more vocal in their criticism of Court decisions blocking economic legislation intended to alleviate the effects of the Great Depression. The due process clause has also been interpreted to provide other protections for individuals. For example, in Brown v. Mississippi (1936), police officers’ actions in torturing suspects to obtain confessions were found to violate the suspects’ right to due process of law. In other words, the torture deprived the suspects of the proper processes due to them in the criminal justice system. In addition to decisions to ensure procedural fairness in criminal justice, due process has also been referred to by the Court as the source of other personal rights not explicitly specified in the Constitution, such as a right for competent adults to decline unwanted medical care, as in Cruzan v. Director, Missouri Department of Health (1990).


The Equal Protection Clause

Initially, the Court did not interpret the equal protection clause as a strong vehicle for eliminating discrimination. In Plessy v. Ferguson (1896), for example, the Court found no violation of equal protection when Louisiana mandated that African Americans ride in separate railroad cars. Because the Court found no equal protection problem with racial segregation, various states imposed segregation on many facets of their societies. During the mid-twentieth century, the Court began to shift its interpretation of the equal protection clause. Eventually this provision of the Fourteenth Amendment was used in Brown v. Board of Education (1954) to declare that racial segregation in public schools violated the Constitution. In subsequent decisions, the Court interpreted the clause to bar other forms of racial discrimination by the government. In interpreting and applying the equal protection clause, the Court developed a special analytical approach that requires the government to show compelling reasons for any policy or program that involves racial discrimination. The only time that state governments have been able to successfully justify treating people differently with regard to their race has been in cases concerning affirmative action programs that seek to remedy the country's long history of discrimination by giving extra consideration to school and job applicants who are members of racial groups that have been victimized by discrimination. In Regents of the University of California v. Bakke (1978), for example, although the Court ruled against racial quotas and ordered that Bakke, a white applicant, be admitted, it held that a university could give members of racial minorities groups extra consideration in the admissions process for medical school without violating the equal protection clause. The Court rejected efforts to apply the equal protection clause to private discrimination, even when state support arguably existed for that discrimination. For example, in Moose Lodge v. Irvis (1972), the Court refused to accept the argument that the state's granting of a liquor license to a club that denied membership to African Americans meant that state action was a component of the discrimination and therefore prohibited by the equal protection clause. During the 1970's, the Court expanded the applicability of the equal protection clause by interpreting it to prohibit many kinds of discrimination by gender in government policies and programs. In its interpretation of the Fourteenth Amendment, the Court did not provide the same level of protection against gender discrimination that it provided against racial discrimination. Therefore, in Rostker v. Goldberg (1981), the Court held that the Selective Service program, which registers young men and not women for a potential military draft, is permissible despite its different treatment of men and women. The Court rejected equal protection claims based on other alleged forms of discrimination, such as a claim that the equal protection clause bars discrimination by government based on people's wealth in San Antonio Independent School District v. Rodriguez (1973). The Court has interpreted the equal protection clause to provide protection against discrimination based on race, gender, national origin, and a few other categories only. In most instances not involving one of these categories, the government may treat people differently as long as there is a rational basis for distinguishing people as part of a legitimate governmental program. Because the Fourteenth Amendment was the first constitutional provision explicitly aimed at giving individuals protection against state actions, the due process and equal protection clauses of the Fourteenth Amendment have been relied on by the Court for broadly expanding the scope and reach of constitutional rights. The Court paid little attention to the privileges or immunities clause until its decision in Saenz v. Roe (1999), which used the clause to protect citizens’ right to travel, including a right for people moving to new states to be treated equally with established residents in receiving benefits from social welfare programs. The rediscovery of the privileges and immunities clause opens further possibilities for the Fourteenth Amendment's use as a vehicle for the expansion of constitutional rights.



Further Reading

  • The history of the Fourteenth Amendment and its role in expanding the scope of rights is examined in Michael Kent Curtis's No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N.C.: Duke University Press, 1986). The incorporation process is analyzed in Henry J. Abraham's Freedom and the Court (5th ed., New York: Oxford University Press, 1988). Raoul Berger's Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, Mass.: Harvard University Press, 1977) provides a critique of the Court's expansion of constitutional rights. The Court's use of the due process clause to protect economic liberties is analyzed in Howard Gillman's The Constitution Besieged: The Rise and Demise of “Lochner” Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993). Richard Kluger's Simple Justice (New York: Random House, 1975) provides a detailed account of the Court's use of the equal protection clause to attack racial discrimination. A comprehensive presentation of the Court's interpretation of the Fourteenth Amendment is contained in William B. Lockhart, Yale Kamisar, Jesse H. Choper, and Steven H. Shiffrin's The American Constitution (6th ed., St. Paul, Minn.: West Publishing, 1986). The justices’ voting records on Fourteenth Amendment issues are analyzed in Thomas R. Hensley, Christopher E. Smith, and Joyce A. Baugh's The Changing Supreme Court: Constitutional Rights and Liberties (St. Paul, Minn.: West Publishing, 1997).