All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law that shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis or representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aide of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Submitted by Congress to the states on June 13, 1866.
Ratified by the required three-fourths of states (twenty-eight of thirty-seven) on July 9, 1868. Declared to be part of the Constitution on July 28, 1868.
Connecticut, June 25, 1866; New Hampshire, July 6, 1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (subsequently the legislature rescinded its ratification, and on March 24, 1868, readopted its resolution of rescission over the Governor’s veto, and on Nov. 12, 1980, expressed support for the amendment); Oregon, September 19, 1866 (and rescinded its ratification on October 15, 1868); Vermont, October 30, 1866; Ohio, January 4, 1867 (and rescinded its ratification on January 15, 1868); New York, January 10, 1867; Kansas, January 11, 1867; Illinois, January 15, 1867; West Virginia, January 16, 1867; Michigan, January 16, 1867; Minnesota, January 16, 1867; Maine, January 19, 1867; Nevada, January 22, 1867; Indiana, January 23, 1867; Missouri, January 25, 1867; Rhode Island, February 7, 1867; Wisconsin, February 7, 1867; Pennsylvania, February 12, 1867; Massachusetts, March 20, 1867; Nebraska, June 15, 1867; Iowa, March 16, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868; North Carolina, July 4, 1868 (after having rejected it on December 14, 1866); Louisiana, July 9, 1868 (after having rejected it on February 6, 1867); South Carolina, July 9, 1868 (after having rejected it on December 20, 1866).
Just as the Fifth Amendment represented a miniature Bill of Rights in itself by providing strong legal protections against federal government abuse of power, the Fourteenth Amendment extended many of these same legal safeguards against state government actions. For this reason, the Fourteenth Amendment has been called a second Bill of Rights. The amendment also made blacks citizens and set penalties for aiding the South’s cause during the Civil War.
The Fourteenth Amendment consists of eight basic parts, or clauses, organized in five sections, each addressing separate legal issues as follows:
- The citizenship clause of section 1: Protects the rights of the recently freed slaves and identifies who may enjoy privileges of U.S. and state citizenships.
- The privileges and immunities clause of section 1: Declares that no state can pass laws or take action that denies an individual’s rights that he or she enjoys as a U.S. citizen.
- The due process clause of section 1: Prohibits state governments from taking any legal actions or passing any laws that unfairly deprive a person of life, liberty, or property.
- The equal protection clause of section 1: Guarantees that all people should be treated fairly under state laws.
- The apportionment clause of section 2: Identifies how citizens of states should be represented in the U.S. House of Representatives and establishes the penalties for states if they should deny male citizens twenty-one or older the right to vote.
- The disqualification clause of section 3: Bans people who had previously taken an oath of office in state and federal governments and then actively took part in a rebellion against the United States, such as the Confederate forces, from holding any future public office in Congress or state governments, or elector of the president and vice president unless specifically exempted from the disqualification by two-thirds vote of each house of Congress.
- The debt clause of section 4: States that U.S. government debts remain valid, but debts incurred by parties supporting rebellions against the U.S. government or economic losses resulting from the freeing of slaves cannot be paid with public funds of the United States or states.
- The enforcement clause of section 5: States that Congress has authority to pass laws to enforce any of the parts of this amendment.
Origins of the Fourteenth Amendment
The Fourteenth Amendment was the second of three constitutional amendments adopted in the wake of the Civil War (1861–65). Collectively they became known as the Civil War amendments or the Reconstruction Amendments. . Whereas the Thirteenth Amendment, ratified three years earlier in 1865, addressed the major Civil War issue of slavery, the Fourteenth addressed another key issue, states’ rights.
States’ rights versus a strong central government
Arguments over how much political power state governments should have were prominent from the beginning of U.S. history. After suffering from the heavy hand of the British government before gaining independence in the Revolutionary War (1775–83), many Americans greatly distrusted strong central governments. As a result, the Articles of Confederation written in 1781 to create the first governmental system for the new nation gave almost all government powers to the states with few to the federal government. The nation was a loose union of sovereign (politically independent) states. In only a few years, however, the public began to realize that the young nation’s growth, particularly in business and economic matters, required having consistent rules and protections that only a strong central government could provide.
To correct this problem, delegates to the Constitutional Convention met in 1787. After intense debate between supporters of a much stronger central government and proponents of states’ rights, a governmental structure with a stronger central government than previously existed was selected. To secure acceptance of the Constitution as it progressed through the ratification process (approval by the states), ten constitutional amendments were written to address some of the major concerns raised by states’ rights supporters. The amendments, known as the Bill of Rights, were created to better guarantee protection of the states and their citizens from potentially oppressive national government powers. They were formally adopted in 1791, two years after the main body of the Constitution was ratified. The Tenth Amendment reserved all powers to the states that were not clearly given to the federal government in the Constitution or the previous nine amendments, or any amendments to be added in the future.
When James Madison proposed his list of amendments that eventually became the Bill of Rights, he considered his most important amendment to be one that read: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” Madison feared that the greatest abuses of individual rights would come from state governments, not the federal government. However, this amendment was not passed and did not become part of the Bill of Rights. The Bill of Rights limited only the federal government. It was not until the passage of the Fourteenth Amendment in 1868 and subsequent Supreme Court decisions in the twentieth century that the protections of the Bill of Rights were extended to the states.
The controversy over the extent of states’ rights, however, persisted for decades and ultimately intensified as the slavery debate escalated. Seventy-seven years after the Constitution was adopted and immediately after the Civil War, whose victors supported a stronger federal government, Congress passed and the states ratified the Fourteenth Amendment. Just as the first amendments protected states and citizens from federal government actions, the Fourteenth Amendment protected citizens against state government actions. Protection for a broad range of rights, including those guaranteed in the first ten amendments, was extended to people denied such rights by state actions. The amendment also politically and economically penalized states and state officials who had rebelled against the U.S. government during the Civil War.
The Founding Fathers of the Fourteenth Amendment
Many people know the founding fathers of the Bill of Rights and the U.S. Constitution: James Madison, Benjamin Franklin, George Mason, Roger Sherman and many more. However, very few people know the names of important congressmen such as John Bingha, Thaddeus Stevens, and Charles Sumner. These men were the leading lights of the thirty-ninth Congress, which pushed through the Fourteenth Amendment. Bingham grew up in Cadiz, Ohio, where he was exposed to abolitionist (antislavery) ideas. Sumner was from Massachusetts, where he represented an black man in 1859 whose daughter had been denied the right to attend a white school. Stevens was from Pennsylvania and a longstanding abolitionist. On his own request, he was buried in a cemetery reserved for blacks.
The Fourteenth Amendment and the Supreme Court
Through the many years following ratification of the Fourteenth Amendment, numerous cases involved its clauses. Some clauses have received far more courtroom attention than others. In addition, important Court interpretations of the clauses’ intent have dramatically changed through time as U.S. society has changed.
Controversies had long centered on how a person becomes a U.S. citizen. Often Supreme Court rulings and general social tradition guided decisions on citizenship questions. As a result, through much of the nineteenth century, U.S. citizenship was limited to certain categories of people. Excluded were such groups as black Americans and American Indians. In the infamous Dred Scott v. Sandford (1857) decision, Chief Justice Roger Brooke Taney (1777–1864) ruled that two categories of people held citizenship. One consisted of white people born in the United States who were descendents of U.S. citizens. The other included people born outside the United States who had entered the United States and become naturalized. Blacks, Taney said, could not become U.S. citizens, even a freeman who descended from free people. Taney added that states had the power to grant people state citizenship, but not U.S. citizenship.
Congress expands citizenship
Following the Civil War (1861–65), Congress reversed the Dred Scott decision through its passage of the Civil Rights Act of 1866 and then incorporated the act into the Constitution at the very beginning of section 1 of the Fourteenth Amendment. Both U.S. and state citizenship was granted to “all persons born or naturalized in the United States.” The factor of a person’s place of residence, in what jurisdiction, replaced the factor of a person’s ancestors or parents being citizens. Therefore, all black Americans, including the newly freed slaves, became citizens. The phrase in the amendment “and subject to the jurisdiction thereof” eliminates those born to foreign diplomats and at that time Indians who were active members of tribes and subject to tribal law.
Based on this clause, the Court ruled in United States v. Wong Kim Ark (1898) that a child born in the United States of Chinese parents who were not citizens did indeed become a citizen with all the rights associated with citizenship. Importantly, the Court ruled in Afroyim v. Rusk (1967) that once a person gained U.S. citizenship, the federal government could not take citizenship away from that person against his or her will. Slowly, individual American Indians gained U.S. citizenship through various means, including the acquiring of private land beginning in the 1890s. All Indians became citizens through passage of the Indian Citizenship Act of 1924.
Privileges and Immunities Clause
During the mid-nineteenth century, supporters of a strong central government attempted to broadly interpret the privileges and immunities clause. They hoped to expand the federal government’s role in regulation of business and lessen the role of the states. The Supreme Court ruled in Slaughter-house Cases (1873) that such a broad interpretation would contradict the basic concepts of federalism in which powers are shared between the federal and state governments.
The Court ruled that Congress could not have intended such a fundamental transformation of the governmental system with this single clause especially because the amendment’s primary purpose, according to the Court, was to extend U.S. citizenship to former slaves.
The actual privileges and immunities offered by the federal government to its citizens are strictly limited. These include the right of habeas corpus (a court order to determine the legality of a person being detained by authorities), the right to use navigable waters (water bodies deep and broad enough for boats to pass) of the United States, the right to travel freely among states, the right to petition Congress concerning grievances, the right to enter public lands, the right to vote for national public officials, the right to personal protection while in U.S. custody, the right to conduct interstate (business across state lines) commerce, and the right to acquire and retain property.
Due Process Clause
Due process is a constitutional guarantee that all legal proceedings will be fair. Before the federal or any state government may take away an individual’s life, liberty, or property, the government must follow a legally set “process” that is “due” to that individual.
Legal scholars have called due process the most fundamental guarantee in American constitutional law—so important that it is promised twice in the U.S. Constitution, in the Fifth and Fourteenth Amendments. Ratified in 1791 as part of the Bill of Rights, the Fifth Amendment states that no person shall “be deprived of life, liberty, or property without due process of law.” Originally the Fifth applied only to actions taken by the federal government. Ratified in 1868, the Fourteenth Amendment’s due process clause proclaims: “Nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Fourteenth’s clause protects individuals from state government abuses of power.
A long history of due process
The concept of due process dates back to the 1215 Magna Carta, which provided that no subject of the king of England could be imprisoned, exiled, or destroyed except by the “law of the land,”, meaning only by accepted legal procedures. Sometime during the 1300s, the phrase “due process of law” was coined and had the same meaning as “law of the land.” From the beginning, British colonies in North America included the phrase “due process of law” in their written laws. Furthermore, even at this early date, scholars recognized that due process possessed two qualities: substantive and procedural.
In English-based legal systems, substantive due process is an expansive concept referring to the true liberties that the government may not take away from a human being. These liberties touch on every aspect of life from speech and religion to the liberty to decide whom to marry and when to have a child. By its very nature, substantive due process has demanded ongoing redefining as the culture has changed. Procedural due process, by contrast, refers to certain rights and specific steps that must be allowed and followed for an individual to be considered fairly treated in legal proceedings. The scope of these legal proceedings ranges widely from situations such as criminal trials to public school placements of students in special programs.
When the Fifth Amendment was drafted, it was unclear whether the due process clause was meant to refer to substantive qualities or procedural ones. For the first sixty years after its ratification, the narrower procedural meaning dominated in the courts and when the due process wording was used in newly written state constitutions.
Substantive due process first practically entered the U.S. jurisprudence (philosophy of law) in 1856 with the Dred Scott decision. Ironically, the liberty identified was the liberty for some people to own slaves—a liberty, so the Court ruled, of which those people could not be deprived. In light of modern-day thinking at the beginning of the twenty-first century, this “liberty” is indefensible, but it only serves to illustrate the evolution of liberties that is connect to the social thinking of any given historical period. From this point on, due process in the United States took two paths: a substantive one and a procedural one. The substantive path has been rocky, often at the center of heated debates, while the procedural path has been relatively smooth and remained noncontroversial.
Substantive due process and liberties
The word substantive must not be confused with the word substantial. The substantial elements of a law would consist of its goal and the rules it lays out to reach that goal. Substantive due process is concerned with the liberty behind the law. Laws could take away a liberty, protect a liberty, or even create a new liberty, all subject to the constitutionality of the action.
The ratification of the Fourteenth Amendment in 1868 allowed the courts to examine state laws that citizens claimed were depriving them of their liberties. However, through the remainder of the nineteenth century, the Supreme Court only occasionally toyed with the notion of substantive due process apart from procedural due process. The modern substantive concept emerged in 1897 with Allgeyer v. Louisiana.
Liberty of contract.
In Allgeyer the Court struck down a state law that prevented its citizens from contracting with out-of-state insurance companies. The Court stated that the Fourteenth Amendment guarantees all citizens the liberty to work in any legal employment and the liberty to enter into contracts relevant to that employment. Thus, the Court established a liberty of contract. The establishment of this rather odd-sounding liberty began what has been called the freedom-of-contract version of Fourteenth Amendment substantive due process.
In the famous Supreme Court case, Lochner v. New York (1905), the Court struck down a New York law limiting a bakery employee’s hours to ten per day and sixty per week. The owner of the bakery demanded that his bakers contract with him for many more hours than the law allowed. One of his bakers sued over the inhumane workload, saying it violated the New York Bakeshop Act. Yet, the Supreme Court ruled in the owner’s favor, saying the law violated the owner’s liberty to contract with his employees for however many hours he wished.
Thus, an odd twist of historical fate occurred. Rather than the Fourteenth’s due process clause protecting an individual from abusive state laws, the Court used it to strike down a state law that helped individuals. Instead, the Court had chosen to protect the economic rights of business owners from any state interference. From the 1890s to 1937, the Court’s primary use of the Fourteenth’s substantive due process was to protect economic liberties of business owners, nearly always applying it to strike down any state law it found violated those liberties. The Court’s approach reflected the economic concept of the day called laissez faire that allowed businesses to operate relatively free of government restraint. Protection of an individual’s liberties, so important at the end of the twentieth century, had become less important. In fact, the Lochner era was frequently criticized as a time when the Supreme Court lost its way in protecting fundamental liberties of Americans.
In the 1930s the United States was in the midst of the Great Depression (a period of widespread unemployment and poverty). President Franklin D. Roosevelt (1882–1945; served 1933–45) began his New Deal to help pull Americans out of their economic troubles. Yet the Court continued to use substantive due process business liberties to strike down drastically needed programs. With the backing of much of the U.S. population, Roosevelt threatened tactics to overcome Court opposition to his programs. Roosevelt’s threats were successful, and the Court changed direction. In West Coast Hotel Co. v. Parrish (1937) the Court upheld a Washington state minimum wage law in support of its citizens’ health and welfare over the business owner’s liberty of contract arguments. The era during which substantive due process was almost totally associated with the business liberty to contract had come to an end.
Bill of Rights and the Fourteenth Amendment.
Even before the Court abandoned its liberty of contract approach to substantive due process, it was exploring the idea of bringing the liberties spelled out in the Bill of Rights, the first ten amendments, under the Fourteenth Amendment’s due process clause. Under the Fifth Amendment’s due process clause, the liberties in the Bill of Rights had been protected from federal government abuse, and the Court was looking for ways to protect these substantive liberties from state government abuse. In 1925 the Court held in Gitlow v. New York that the Fourteenth Amendment’s due process clause could be used to hold state governments to the free speech and press standards of the First Amendment. Gitlow opened up a gradual, decades-long, case-to-case approach of incorporating the fundamental liberties listed in the Bill of Rights under Fourteenth Amendment due process protections from state government abuses. This process became known as the incorporation doctrine. At the end of the twentieth century, only a few protections in the Bill of Rights, such as the Second Amendment right to bear arms, the Third Amendment right against a person being forced to house soldiers, and the Fifth Amendment right to be indicted by a grand jury had not been brought under the Fourteenth, largely because they do not apply to states.
Two categories of fundamental liberties.
The Supreme Court has identified two categories of liberties protected by the Fourteenth Amendment’s due process clause. The first are enumerated (listed), those liberties specifically written into the Bill of Rights. Basic liberties found in the Bill of Rights include freedom of speech, religion, press, assembly, petition, and trial by jury.
The second category is the unenumerated (not listed) liberties. These are liberties that are not actually written or named in the Bill of Rights but considered essential to a free society. These liberties are rooted in U.S. legal history, common law, and the moral values of the nation. No specific list of unenumerated liberties can ever be made, for they are constantly evolving with social change. Supreme Court Justice Felix Frankfurter (1882–1965) explained: “Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.”
The new substantive due process.
In the 1850s, liberty to own slaves was an unenumerated right protected by substantive due process. In the 1890s to 1930s, the unenumerated right that received the most attention and protection under substantive due process was the liberty of contract. Beginning in the 1960s, the Court used substantive due process to protect the civil liberties of individuals, especially racial minorities and women, against state government actions. Sometimes called the “new” substantive due process, unenumerated liberties in matters of personal choice in family life began to dominate. The liberty to make choices in the most personal dilemmas of life and death is referred to as the general right to privacy.
The liberty of privacy.
The liberty of privacy, or the right to privacy, recognizes under substantive due process the right of individuals to lead their private lives free from unreasonable government interference. Examples of privacy issues on which the Court has ruled include birth control, abortion, extended family living arrangements, and the right to die.
Under a 1879 Connecticut law, Estelle Griswold was convicted of the crime of counseling married couples on the use of birth control and contraceptives. The defendant argued there existed a constitutional right to privacy, although not specifically written in the Constitution, which prevents the government from intruding into certain areas of a person’s life. Writing for the majority, Justice William O. Douglas (1898–1980) pulled together parts of the First, Fourth, Fifth, and Ninth Amendments that indeed implied “zones of privacy that are the foundation for a general right to privacy.” He wrote in Griswold v. Connecticut (1965) that substantive due process of the Fourteenth Amendment may be used to limit state government interference with the right to privacy.
Eisenstadt v. Baird (1972) and Carey v. Population Services International (1977) made it clear that the Griswold decision could be extended to privacy interests of unmarried people and minors, who could not be denied access to contraceptives.
In 1973 Jane Roe, the pseudonym of Norma McCorvey, argued that Texas abortion laws were unconstitutional and violated her rights under substantive due process of the Fourteenth Amendment. In Roe v. Wade the Court ruled in Roe’s favor, finding that both the Fourteenth Amendment and the Ninth Amendment encompassed an unenumerated liberty for a woman to decide whether to terminate her pregnancy.
In 1977, Moore v. City of East Cleveland the Court struck down local ordinances that limited the number of occupants that could live in particular dwellings, which shut out extended family members such as grandparents.
The liberty of privacy issues moved into the 1990s by asking whether the right to die is a protected liberty. In Cruzan v. Director of Missouri Department of Health (1990), Chief Justice William Rehnquist (1924–) supported “the right of a competent individual to refuse medical treatment” (choosing thereby to exercise the right to die). He wrote that the right to die is a “constitutionally protected liberty interest” under the Fourteenth Amendment due process of law. At the end of the 1990s, the Court ruled on “physician-assisted suicide” in Washington et al. v. Glucksberg et al. (1997). The Court refused to recognize physician-assisted suicide as an “unenumerated” liberty; therefore, there was no Fourteenth Amendment substantive due process available for striking down a Washington law banning “assisted suicide.” The Washington law stood.
The right of privacy does not protect all forms of behavior behind closed doors. There is no constitutional protection for situations such as viewing child pornography or soliciting prostitutes. The liberty interest will allow government intervention as long as there is a rational purpose behind the intervention.
Procedural due process
While substantive due process looks at the liberty behind the law, procedural due process considers only the manner in which government acts. Procedural due process limits the exercise of the power of state and federal governments by requiring them to follow certain steps or procedures that will allow all forms of legal proceedings to be fair. Justice Felix Frankfurter described the promise of fundamental fairness as “representing a profound attitude of fairness between man and man, and more particularly between the individual and the government.” Before a government can deprive an individual of life, liberty, or property, it must follow due process of law or standard accepted legal procedures. This provision generally entails providing fair notice and a hearing before depriving an individual of his life, liberty, or property.
The Bill of Rights contains legal practices that are central to procedural due process. Through the second half of the twentieth century, most of the first ten amendments, which make up the Bill of Rights, were brought under the umbrella of the Fourteenth Amendment’s due process and applied to the legal proceedings of states. Previously, the standards in those amendments had applied only to federal proceedings under the Fifth Amendment’s due process. For example, in Gideon v. Wainwright (1963), the Court ruled that the right to counsel (to have an attorney) was so fundamental that the Fourteenth Amendment’s due process clause extended to the Sixth Amendment guarantee of counsel to every defendant in a state criminal trial, just as in a federal trial.
Likewise, in Malloy v. Hogan (1964), the Court extended the protection not to be obliged to incriminate oneself found in the Fifth Amendment to state proceedings under the Fourteenth’s due process. No longer could states force confessions. Individuals in state trials could now “take the Fifth,” that is choose to exercise the right to remain silent when accused and to refuse to testify in their own defense.
The many standard legal procedures in criminal cases include: the right to be told of the crime being charged; protection from unreasonable searches and seizures; double jeopardy, or not to be tried more than once for the same crime; a speedy, public trial by an impartial jury; the right to cross-examination; and, the obligation of the state to prove charges beyond a reasonable doubt.
In addition to criminal trials, procedural due process extends protections in many facets of government-individual interactions, such as government entitlement programs, including Social Security and welfare, licensing procedures, and public school placements. Generally individuals must be given notice of a proceeding concerning them and be given an opportunity to speak in their behalf before the government acts to take a right away from them. For example, Bell v. Burson (1971) established that a license to drive a car is a constitutional right and cannot be revoked without a hearing. In public schools, the parents of a child receiving special education services may request a due process hearing if they disagree with the identification, evaluation, placement, or other aspect related to their child’s public education.
Joseph Lochner, Aman Schmitter, and the Liberty of Contract
Joseph Lochner, a small bakery owner in Utica, New York, produced biscuits, breads, and cakes for early-morning customers. His employees frequently had to work late at night, often sleeping in the bakery and rising in time to have the goods ready for customers. In April 1901, one of Lochner’s bakers, Aman Schmitter, worked more than sixty hours in one week, violating the recently passed Bakeshop Act of 1895, which set sanitation standards and maximum work hours. A complaint was filed with the police, who arrested Lochner and charged him in violation of the Bakeshop Act.
Found guilty and sentenced to pay a fifty-dollar fine or spend fifty days in jail, Lochner appealed his case arguing that New York’s Bakeshop Act interfered with his constitutional freedom to make a contract with his employees concerning pay and hours of work. This act interfered with his right to earn a living and pursue a lawful trade as provided in the Fourteenth Amendment’s due process clause.
Losing in the New York court system, Lochner took his case to the U.S. Supreme Court where he argued the law violated his “liberty of contract.” He argued that because baking was not a dangerous occupation, the state law was an inappropriate use of police powers that deprived bakery owners due process rights. New York argued such state protections for the health and well-being of workers and general public were nothing new. Such laws were needed for the public good to protect workers from being unfairly exploited.
The Court’s resulting decision reflected the general sentiments of a growing young industrial society that believed that the least amount of government regulation would allow the economy to grow “naturally.” The Court created an unwritten right in Lochner from a loose reading of the Fourteenth Amendment’s due process clause regarding liberty and the right to contract. Such an interpretation persisted for decades with an emphasis on property rights and liberty of contract. This perspective was later replaced in the last half of the twentieth century with an emphasis on protecting individual civil rights from police power. State governments then were given considerable freedom to regulate the workplace and other economic affairs.
What is a person?
The meaning of the word, “person,” in the due process clause and in the equal protection clause has received Court attention. In Yick Wo v. Hopkins (1886), the Court held that the due process clause protects all humans regardless of race, color, or citizenship. Then in Grosjean v. American Press Co. (1936), the Court held that although corporations are not considered persons in the context of “liberty” protected by the amendment, corporations may still not be deprived of their property without due process of law. They deserve protection from oppressive state laws just as individuals.
Equal Protection Clause
The concept of fairness, as an American ideal, has changed over the decades. In the early 2000s, the use of personal traits such as race, gender (sex of the person), or nationality to legally set apart one group of people from others quickly raises serious concerns over constitutional appropriateness. However, this modern notion of equality is not the same as it was when the United States was a young nation. Although the 1776 Declaration of Independence proclaimed that “all Men are created equal” with certain basic rights, including “Life, Liberty, and the Pursuit of Happiness,” the goal of gaining national liberty from England was stronger than striving for individual equality among the colonists. As a result, some classes of people enjoyed more rights than others. For example, in the first years of the nation, only white male adult citizens who owned property could vote. Excluded were women, people of color, and the poor who held no property. In addition, slavery played an important role in the nation’s economy. In fact, nowhere did the term equality appear in the U.S. Constitution adopted in 1789 or the Bill of Rights of 1791.
Even following adoption of the Fourteenth Amendment’s equal protection clause, many white Americans did not think in terms of social equality in the late nineteenth and early twentieth centuries. Racial prejudice was rampant. The U.S. Supreme Court was not a source of support for black Americans. It consistently issued decisions greatly limiting what the government could do to protect the rights of blacks and enforce the Fourteenth Amendment.
Equal treatment of the diverse U.S. population, therefore, did not immediately follow from the amendment. When cases involving equality issues were first brought before federal courts, including the U.S. Supreme Court, the courts consistently interpreted the Fourteenth Amendment narrowly (very limited in meaning). The first key interpretation came in 1883 in the Civil Rights Cases involving the Civil Rights Act of 1875 passed by Congress to enforce the Civil War amendments. This act sought to assure equal access to public transportation and public places such as inns and theaters. The Supreme Court ruled that the Fourteenth Amendment only applied to discrimination by state governments, not to discrimination by private people such as owners of railroads, theaters, or inns. The ruling largely overturned (reversed) the 1875 act, leaving the federal government virtually powerless to control discrimination against blacks by private individuals. Taking advantage of this powerlessness, the governments of many southern states created segregation (separation of groups by race) laws in the 1880s known as Jim Crow laws.
Separate but equal
The next major setback in enforcement of the equal protection clause was the Plessy v. Ferguson (1896) decision. The case involved Homer Plessy, who was arrested for refusing to move from the white section of a railway car in Louisiana. In reaction to those seeking true equality in access to public facilities (places), the Court established the “separate but equal” rule. The rule meant that violation of the clause would not occur as long as black Americans had access to the same kind of facilities as white people had, even if they were separate from those used by white people. This ruling led to black Americans and whites having separate water fountains, separate public restrooms, and separate schools. The ruling basically promoted racial segregation by offering a very narrow interpretation of equal protection.
The ruling would greatly influence social customs in the United States, particularly in the South, for most of the next six decades. Rarely would separate black facilities be as good as white facilities, and given the lengthy history of discrimination in the United States, blacks held little political power to make sure separate facilities would become equal in quality. The phrase “separate but equal” became symbolic of forced racial segregation in the nation invading almost every aspect of American society, including restaurants, railroads, streetcars, waiting rooms, parks, cemeteries, churches, hospitals, prisons, elevators, theaters, schools, public restrooms, water fountains, and even public telephones.
Aliens and equal protection
Ironically aliens (citizens from foreign countries) initially received more favorable treatment from the courts concerning equal protection than black Americans. In Yick Wo v. Hopkins (1886), the Supreme Court ruled in favor of a Chinese laundry owner. The owner claimed a San Francisco city ordinance (law) regulating business licenses, although containing no discriminatory wording, was written in such a way as to shut down Chinese laundry businesses in the city. Yick Wo was the only successful equal protection challenge among the first cases brought to the Supreme Court in the decades following the ratification of the Fourteenth Amendment.
The shift to individual civil rights
The historically important shift in applying the equal protection clause to individual civil rights began to occur in the late 1930s through efforts of the National Association for the Advancement of Colored Peoples (NAACP) and other groups. The courts responded with favorable decisions for racial minorities suffering injustices under state law. For example, in Missouri ex rel. Gaines v. Canada (1938), the Supreme Court ruled in favor of an individual denied entrance into a state law school. The Court found that a state requirement based solely on race violated the equal protection clause.
The modern civil rights era
Two major 1954 court decisions introduced the modern civil rights era and brought the equal protection clause to the forefront of constitutional law in the mid-twentieth century. In the landmark case of Brown v. Board of Education, Topeka, Kansas, the Supreme Court struck down Plessy’s “separate but equal” rule by finding that public school segregation was unconstitutional (not following the intent of the U.S. Constitution). A civil rights revolution began with this decision. That same year in Bolling v. Sharpe, the Court held that the due process clause in the Fifth Amendment prohibits racial discrimination by the federal government just as the equal protection clause of the Fourteenth Amendment prohibits discrimination by state governments. The decision essentially extended the equal protection clause of the Fourteenth Amendment to the due process clause of the Fifth Amendment. The door was opened to a dramatically broader protection of individuals’ civil rights.
Reaction to Oliver Brown’s Court Victory
The landmark 1954 Supreme Court decision in Brown v. Board of Education, Topeka, Kansas represented a major turning point in constitutional law and legal history concerning recognition of individual civil rights. But it was the public reaction to the decision that actually inspired additional aggressive steps by the federal government toward ending racial discrimination. The case addressed one of the most basic, and emotional, issues in the United States: the education of its children.
Not surprisingly, the case involved seemingly simple issues. Oliver Brown, a black man and railroad welder living in Topeka, Kansas, wanted to send one of his daughters, Linda, a third-grader, to the closest public school, rather than one designated for blacks that was not only farther away, but was a mile on the other side of a dangerous railroad switching yard.
But as in many states in the mid-twentieth century, public schools were racially segregated in Kansas under state law. Topeka had twenty-two public elementary schools with four set aside for black school children. When Topeka school officials refused to let his daughter enroll in the nearby white school, Brown filed charges claiming that racial segregation of public schools denied black schoolchildren equal protection of the law as guaranteed by the Fourteenth Amendment. Local courts ruled against Brown, holding that school segregation does not violate the Constitution according to the separate but equal doctrine described in the earlier Supreme Court decision of Plessy v. Ferguson (1896). Brown appealed the decision to the U.S. Supreme Court. The Court ruled unanimously in Brown’s favor, agreeing that racial segregation is always unequal regardless of whether the black children have the same quality of facilities, teachers, and books. Chief Justice Earl Warren (1891–1974) wrote: “Today, education is perhaps the most important function of the state and local governments … It is required in the performance of our most basic public responsibilities … It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment … Such an opportunity … is a right which must be made available to all on equal terms.”
By reversing the Plessy ruling and throwing out the ”separate but equal” doctrine, the Court touched off strong political and public opposition. More than a hundred members of Congress from the South signed a statement urging states to resist enforcement of the decision. Even President Dwight D. Eisenhower (1890–1969; served 1953–61) refused to support the decision. New schemes were adopted to keep schools segregated, public funding of private segregated schools was attempted, and some districts even closed public schools. In 1957 the U.S. Army and the Arkansas National Guard were called to protect black children being admitted to a Little Rock high school. In 1962 President John F. Kennedy (1917–1963; served 1961–63) sent federal troops to the University of Mississippi when James Meredith attempted to enroll.
Ten years after the Brown decision, fewer than two percent of black schoolchildren in the South were attending schools with whites. With the violence and resistance persisting, public pressure mounted for a resolution. Congress passed the Civil Rights Act of 1964. The act established sweeping prohibitions against racial discrimination in public places, including schools, and gave the U.S. attorney general authority to initiate court actions against school districts resisting the Brown decision. By the early 1970s, school segregation policies had been largely eliminated. Meanwhile, the ruling had also set the stage for ending racial segregation in other public places, from bus stations to public libraries to restrooms.
Still progress in recognizing individual civil rights in the United States following decades of racial discrimination was slow. Numerous public protests followed, often involving highly publicized acts of civil disobedience (peacefully disobeying laws considered unjust) under the leadership of Dr. Martin Luther King Jr. (1929–1968) and others. Eventually in the mid-1960s, widespread violence erupted in the nation’s cities.
Congress reacted to the growing social unrest by passing a series of laws designed to further recognize civil rights and equality under the law for minorities and women. The 1963 Equal Pay Act required that men and women receive similar pay for performing similar work. The landmark 1964 Civil Rights Act prohibited discrimination based on race, color, national origin, or religion at most privately owned businesses that serve the public. The 1964 act also established equal opportunity in employment on the basis of race, religion, and sex. In Reynolds v. Sims (1964), the Court extended equal protection under the Fourteenth Amendment to voters’ rights. The “one person, one vote” rule resulting from the decision was put into law by Congress the following year in the 1965 Voting Rights Act. Prohibited were state residency requirements, poll taxes (required payment of a tax before voting), and candidate filing fees that traditionally were used to discriminate against poor and/or minority voters. A fourth important law followed in 1968 with the Fair Housing Act, which prohibited discrimination in housing.
Court decisions involving the equal protection clause began focusing more on gender discrimination as the public began demanding equal treatment of the sexes. In 1971, the Court in Reed v. Reed overturned an Idaho law arbitrarily discriminating against women regarding estates, thus extending the equal protection clause to gender discrimination. Courts also found some laws discriminatory toward illegitimate children (whose parents were not married), and unwed fathers. In Weber v. Aetna Casualty & Surety Co. (1972), the Court ruled that illegitimate children should have the same protections as other children. They should not be penalized through life for their parents’ actions over which they had no control. Through the 1980s and 1990s, equal protection issues tackled new topics such as sexual harassment, gay rights, affirmative action (vigorous encouragement of increased representation of women and minorities), and assisted suicide (right to choose when to die) . For example, in U.S. v. Virginia (1996), the Supreme Court ruled that Virginia Military Institute violated equal protection by not admitting females to its military institution. Ginsburg, who was called the "Thurgood Marshall of gender equality" for her advocacy against gender discrimination, wrote that no longer can sex be used to "create or perpetuate the legal, social, and economic inferiority of women."
Standards of scrutiny
Despite the considerably broadened application, the equal protection clause does not require that all people be treated equally at all times. Discrimination is sometimes legally permitted, such as not allowing people younger than eighteen to vote in elections. The key decision often before the courts is to determine when discrimination is justified. With this in mind, the Court created a system of three different levels of examination, called scrutiny, to test an action or law for equal protection violations. A case receives the highest level of scrutiny or ”strict scrutiny” if it involves racial discrimination, aliens, or issues of nationality. This is important, because as Justice David Souter wrote: “Strict scrutiny leaves few survivors,” meaning that most laws subject to strict scrutiny are struck down by the courts. At the intermediate level of scrutiny are cases involving women and “illegitimate persons” (individuals whose parents were not married). All other cases involving equal protection considerations fall into what is called ”rational basis” scrutiny. It is generally far easier to justify a law as rational rather than defending it under strict scrutiny.
Changing government roles under equal protection
The role of government regarding protection of citizens’ civil rights changed dramatically between the late nineteenth century and the early 2000s. Originally the government was mainly concerned with protecting a person’s activities from government restriction unless the person’s behavior was extreme or posed a danger to others. In a fundamental shift in philosophy, the government had shifted emphasis to promoting community general welfare by the late twentieth century. This philosophical shift was reflected in society as a whole. Limiting the behavior or actions of some people in order to protect the rights of others had become acceptable. For example, restaurant owners are required to serve all members of the public, whether they want to or not, unless questions of safety or health arise. This change, in which the Fourteenth Amendment played a key role, represented a shift in emphasis from political liberty from government rules during the eighteenth-century colonial period to ensuring equality for all in the later years of the twentieth century. The equal protection clause has become the primary constitutional shield for protecting the civil rights of the many groups of people in the United States.
Although some supported granting newly freed slaves voting rights following the Civil War, general public sentiment remained largely opposed. Blacks could vote in only a few northern states. In addition, according to Article I of the Constitution, a slave only counted as three-fifths of a person when determining how much representation a state could have in the U.S. House of Representation. The abolition of slavery by the Thirteenth Amendment in 1865 meant that black Americans became fully counted. Each state’s representation was based on its total population. This sudden potential increase in representation for southern states substantially changed the apportionment of seats in the U.S. House of Representatives and meant the newly readmitted states would have even greater political clout than before. To assure the representatives would be white, southerners as well as Democrats in the North adamantly opposed a constitutional amendment granting voting rights for blacks.
There was substantial political opposition to granting the black vote within the Fourteenth Amendment, so section 2 of the amendment containing the apportionment clause was written as a compromise. This clause replaced the three-fifths rule in Article I. Any state denying male citizens twenty-one years of age or older the right to vote would have its representation in Congress decreased accordingly. The amendment did allow states to deny the vote to criminals.
The section, however, never became a political factor because the Fifteenth Amendment granting voting rights to black Americans was ratified two years later. In 1972, the Supreme Court did use the apportionment clause in Richardson v. Ramirez to rule that a convicted felon had no right to vote, even after completing a prison sentence. The Court stated that the apportionment clause overrode the equal protection clause in such situations.
Section 3 of the amendment disqualified people who aided the South in the Civil War from holding public office. People affected were those who had previously held public office in the federal or state governments and had taken oaths to uphold the U.S. Constitution. This clause attempted to keep Confederate leaders out of power. Congress, by a vote of two-thirds of each House, could reinstate individuals affected. This occurred on several occasions. In 1872 Congress passed a law limiting the disqualification to individuals in certain offices, and the ban was removed altogether in 1898.
Public Debt Clause
Section 4 of the amendment guaranteed the repayment of debts the U.S. government incurred during the Civil War, such as payment of pensions to soldiers. Congress sought to assure the public and its debtors that the government’s debts would be paid and not eliminated by any congressional acts or court decisions. As late as 1935, the Court used the section to limit congressional powers in altering debt payments in Perry v. United States. The public debt clause also stated that debts incurred by the Confederacy in rebellion against the United States were not part of these public debts. This clause prevented southern states from using money to pay for the rebellion or to pay citizens who lost their slaves.
Section 5 of the amendment granted Congress power to pass laws enforcing the Fourteenth Amendment’s various clauses. Congress, shortly after ratification, passed seven laws to enact the amendment, including several general civil rights acts banning racial discrimination. The Court consistently refused to acknowledge that the enforcement clause enlarged Congress’s power to protect individual rights. By the end of the century, most of the laws had been overturned by the Court, directly repealed, or made obsolete by later legislation. Not until the civil rights revolution of the 1950s and 1960s did the Civil War amendments take on the meaning the authors intended.
Summing Up the Parts of the Fourteenth Amendment
The main goal of the Fourteenth Amendment, ratified (approved) in 1868, was to extend citizenship to the newly freed slaves and to guarantee their civil rights as interpreted by Congress. Civil rights referred to the idea of all citizens participating free from discrimination (giving privileges to one group but not another) in such public activities as voting, staying in an inn, attending a theater performance, or seeking employment.
Some clauses in the amendment, including the apportionment, disqualification, and debt clauses, addressed immediate concerns created by the South’s rebellion against the Union leading to the Civil War. Other clauses were more long lasting, affecting everyday life in U.S. society. Two of the key clauses in the Fourteenth Amendment are the due process and equal protection clauses. Due process extends to citizens’ protections from potentially unfair state government laws and actions similar to the Fifth Amendment that protects citizens and states from unfair federal government actions. The idea of equality under the law was expressed for the first time in the Constitution in the Fourteenth Amendment’s equal protection clause. Equal protection of the laws means no person will be denied the same protection of the laws enjoyed by other people or groups. The Fourteenth’s due process and equal protection clauses have played a significant role in recognizing individual civil rights in numerous court decisions through the second half of the twentieth century.
FOR MORE INFORMATION
Epps, Garrett. Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America. New York: Holt, 2006.
Howard, John R. The Shifting Wind: The Supreme Court and Civil Rights From Reconstruction to Brown. Albany: State University of New York Press, 1999.
Hudson, David L. Jr. The Fourteenth Amendment: Equal Protection Under the Law. Berkeley Heights, NJ: Enslow Press, 2002.
Labbe, Ronald M., and Jonathon Lurie. The Slaughterhouse Cases: Regulations, Reconstruction, and the Fourteenth Amendment (Landmark Law Cases and American Society). Lawrence: University of Kansas, 2005.
Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, MA: Harvard University Press, 1998.
Perry, Michael J. We the People: The Fourteenth Amendment and the Supreme Court. New York: Oxford University Press, 2001.
Thermstrom, Stephan, and Abigail Thermstrom. America in Black and White: One Nation, Indivisible. New York: Simon & Schuster, 1999.
Colker, Ruth. “The Section Five Quagmire (Fourteenth Amendment).” UCLA Law Review 47 (February 2000): 653–702.
Duffy, Shannon P. “NJ Casino Affirmative Action Rules Held Unconstitutional by U.S. Judge.(New Jersey).” New Jersey Law Journal 166(October 15, 2001): 7.
Estreicher, Samuel, and Margaret H. Lemos. “The Section 5 Mystique: Morrison, and the Future of Federal Antidiscrimination Law (Fourteenth Amendment; Separation of Powers).” Supreme Court Review (Annual 2000): 109.
Farnsworth, Ward. “Women under Reconstruction: the Congressional Understanding.(Fourteenth Amendment and Women’s Citizenship Rights).” Northwestern University Law Review 94 (Summer 2000): 1229–1295.
Rosman, Michael. “Bounds Back.(U.S. Supreme Court and the Fourteenth Amendment).” New Jersey Law Journal 161 (August 14, 2000): S–14.
Williams, Duncan E. “Welcome to California, Tom Joad: An historical Perspective on Saenz v. Roe Stirring the Privileges or Immunities Clause from Its Slaughter-House Slumber.” New York University Annual Survey of American Law 58 (Winter 2001): 85–129.
Findlaw Internet Legal Resources. The Fourteenth Amendment and Annotations. (accessed August 13, 2007) .
FindLaw Internet Legal Resources. U.S. Supreme Court Opinions. (accessed August 13, 2007).
National Association for the Advancement of Colored People (NAACP) . (accessed August 13, 2007) .
Biskupic, Joan, and Elder Witt. Guide to the U.S. Supreme Court. 3rd ed. Washington, DC: Congressional Quarterly, 1997.
Hall, Kermit L., ed. Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992.
Higginboth, A. Leon Jr. Shades of Freedom: Racial Politics and Presumptions of the American Legal Process. New York: Oxford University Press, 1996.
Lehman, Jeffrey, and Shirelle Phelps, eds. West’s Encyclopedia of American Law. Farmington Hills, MI: Thomson Gale, 2004.
The Fourteenth Amendment to the U. S. Constitution reads:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
The Fourteenth Amendment, ratified in 1868, has generated more lawsuits than any other provision of the U.S. Constitution. Section 1 of the amendment has been the centerpiece of most of this litigation. It makes "All persons born or naturalized in the United States"citizens of the United States and citizens of the state in which they reside. This section also prohibits state governments from denying persons within their jurisdiction the privileges or immunities of U.S. citizenship, and guarantees to every such person due process and equal protection of the laws. The Supreme Court has ruled that any state law that abridges freedom of speech, freedom of religion, the right to trial by jury, the right to counsel, the right againstself-incrimination, the right against unreasonable searches and seizures, or the right against cruel and unusual punishments will be invalidated under section 1 of the Fourteenth Amendment. This holding is called the incorporation doctrine.
Sections 2 to 5 have been the subject of far fewer lawsuits. Some of these sections seem anachronistic today because they reflect the immediate concerns of the Union's political leadership following the North's victory over the South in the Civil War (1861–65). Section 2, for example, penalized any state that attempted to abridge the voting rights of its black male residents by reducing the state's representation in Congress (no female resident of any race was afforded the constitutional right to vote in the United States until 1920). Section 3 prohibited from holding state or federal office any person who engaged in "insurrection or rebellion" or otherwise gave "aid or comfort to the enemies" during the Civil War. Section 4 reaffirmed the United States' commitment to pay its Civil War debt, while declaring all debts and obligations incurred by the Confederate government "illegal and void." Section 5 enabled, and continues to enable, Congress to pass "appropriate legislation" to enforce the provisions of the Fourteenth Amendment.
The Fourteenth Amendment was drafted to alleviate several concerns harbored by many U.S. citizens prior to its ratification. The most obvious concern related to the status of the recently freed slaves. Five years before hostilities commenced in the Civil War, the Supreme Court declared that people of African descent living in the United States were not "citizens" of the United States, but merely members of a "subordinate and inferior class of human beings" deserving no constitutional protection whatsoever (dred scott v. sandford, 60 U.S. [19 How.] 393, 15 L. Ed. 691 ). The Fourteenth Amendment vitiated the Supreme Court's holding in Dred Scott by making all blacks "born or naturalized in the United States" full-fledged citizens entitled to the same constitutional rights provided for every other U.S. citizen.
The racist attitudes expressed in Dred Scott also manifested themselves after the Civil War. In 1865, the southern states began enacting the black codes, which deprived African Americans of many basic rights afforded to white Americans, including the right to travel, bear arms, own property, make contracts, peaceably assemble, and testify in court. The Black Codes also authorized more severe punishments for African Americans than would be imposed on white persons for committing the same criminal offense. The Fourteenth Amendment offered an antidote to these discriminatory laws by guaranteeing to members of all races "due process of law," which requires the legal system to provide fundamentally fair trial procedures, and "equal protection of the laws," which requires the government to treat all persons with equal concern and respect.
Dred Scott was not the only Supreme Court decision that influenced the framers of the Fourteenth Amendment. Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833), also played a significant role. This case involved a Maryland wharf owner who brought a lawsuit against the city of Baltimore for violating the Fifth Amendment's eminent domain clause, which prohibits the government from taking private property without "just compensation." Baltimore defended against the wharf owner's lawsuit by arguing that the fifth amendment only provides relief against action taken by the federal government and offers no protection against state governments or their political subdivisions. The Supreme Court agreed with Baltimore.
Writing for the Court, Chief Justice john marshall asserted that the Constitution created the federal government, and the provisions of the Constitution were designed to regulate the activity of the federal government. The people of each state enacted their own constitution, Marshall contended, to regulate the activities of their state and local governments. Thus, Marshall reasoned that the U.S. Constitution operates only as a limitation on the powers of the federal government, unless one of its provisions expressly restricts the powers of state governments, as does Article I, Section 10.
Article I, Section 10, provides that "[n]o State shall enter into any Treaty, Alliance, or Confederation," or "pass any Bill of Attainder, ex post facto law, or Law impairing the Obligation of Contracts." This wording, Marshall maintained, demonstrates that the Framers understood the type of clear and unequivocal language that must be used to make a provision of the federal Constitution binding on the states. Because the first eight amendments to the Constitution do not contain language that restricts the powers of state governments, Marshall concluded that the bill of rights was inapplicable to the states.
The Supreme Court's decision in Barron weighed heavily on the mind of john bingham, the Republican representative from Ohio who was the primary architect of Section 1 of the Fourteenth Amendment. Bingham said he "noted … certain words in the opinion of Marshall" when he was "reexamining that case of Barron." The chief justice, Bingham stressed, denied the wharf owner's claim because the Framers of the Bill of Rights, unlike the Framers of Article I, Section 10, had not chosen the type of explicit language that would clearly make the Bill of Rights applicable to state governments. "Acting upon" Marshall's "suggestion" in Barron, Bingham said, he "imitated"the Framers of Article I, Section 10:"As [these Framers had written] 'no state shall … pass any Bill of Attainder …' I prepared the provision of the first section of the fourteenth amendment."
Bingham's remarks shed light on the Supreme Court's decision to make most of the provisions contained in the Bill of Rights applicable to state governments through the doctrine of incorporation. Under this doctrine, the Supreme Court has ruled that every protection contained in the Bill of Rights—except for the right to bear arms, the right to indictment by grand jury, the right to trial by jury in civil cases, and the right against quartering soldiers—must be protected by state governments under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
The Supreme Court has explained that each of these incorporated rights is "deeply rooted in the nation's history" and "fundamental" to the concept of "ordered liberty" represented by the Due Process Clause (Palko v. Connecticut, 302U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 ). Any state that denies one of these rights is violating its duty to provide the "equal protection of the laws" guaranteed to the residents of every state by the Fourteenth Amendment.
Although a state may provide more constitutional protection to its residents than is conferred by the Bill of Rights, the Fourteenth Amendment prohibits any state from providing less protection. For example, the Supreme Court upheld the constitutionality of sobriety checkpoints, which authorize police officers to stop motor vehicles to determine if the driver has been consuming alcohol, regardless of whether the stop was based on probable cause or made pursuant to a search warrant as required by the fourth amendment (Michigan v. Sitz, 496U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412). The Minnesota Supreme Court reached the opposite conclusion, invalidating arrests made during traffic stops at sobriety checkpoints because they did not comport with the state's constitutional provisions prohibiting unreasonable searches and seizures (Ascher v. Commissioner of Public Safety, 519 N.W.2d 183 [Minn. 1993]).
Whereas the Due Process and Equal Protection Clauses have given rise to a panorama of legal claims such as the sobriety checkpoint cases, the privileges and immunities clause has produced only a few lawsuits since the end of the 1800s. Like most other legal terms in the Bill of Rights, the phrase privileges or immunities is not defined in the Constitution. Nor does the phrase possess a meaning that is self-evident. However, some insight into the meaning of the Privileges and Immunities Clause may be gleaned from statements made by the man who drafted it, Congressman Bingham.
Bingham said the "privileges and immunities of citizens of the United States … are chiefly defined in the first eight amendments to the Constitution of the United States… . These eightarticles … never were limitations upon the power of the states until made so by the Fourteenth Amendment" (quoted in Adamson v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903 [Murphy, J., dissenting]). Senator Jacob Howard echoed these thoughts, stating that "these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—[include] … personal rights … such as the freedom of speech and of the press, [and] the right of the people to peaceably assemble and petition the government for redress of grievances." Similarly, Representative james wilson made it clear that the "privileges and immunities of the citizens of the United States" include "[f]reedom of religious opinion" and "freedom of speech and press."
Notwithstanding the statements made by these congressmen, the Supreme Court has limited the application of the Fourteenth Amendment's Privileges and Immunities Clause to provide only negligible protection against the state and federal governments. In the slaughter-house cases, 83 U.S. (16 Wall.) 16, 21 L. Ed. 268 (1873), a group of New Orleans butchers brought a lawsuit to invalidate a Louisiana law that granted a monopoly to a local slaughterhouse. The butchers alleged that the state-chartered monopoly violated their "privileges and immunities" to pursue gainful employment free from unlawful restraints.
In an extremely narrow reading of the Fourteenth Amendment, the Supreme Court rejected the butchers' argument. The Court held that the Privileges and Immunities Clause protects only rights derived from U.S. citizenship, such as the right to habeas corpus and interstate travel and not rights derived from state law, such as the common-law rights of tort and property asserted by the New Orleans butchers. The Supreme Court has neither overruled its decision in the Slaughter-House cases nor expanded its narrow interpretation of the Privileges and Immunities Clause. Most constitutional scholars have since pronounced this clause a dead letter.
If the Supreme Court has provided a more conservative interpretation of the Privileges and Immunities Clause than envisioned by the Framers of the Fourteenth Amendment, it has provided a more liberal interpretation of the Equal Protection Clause. In brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court ruled that the doctrine of "separate but equal," in which the black and white races were segregated in public schools and other places of public accommodation, was "inherently unequal" and denied African Americans "equal protection of the laws." The ambit of the Equal Protection Clause was later enlarged by the Supreme Court beyond racial segregation to cover an assortment of gender discrimination claims asserted by women.
The Court made these rulings in spite of evidence that racial segregation was prevalent at the time the Fourteenth Amendment was adopted and that women were treated like second-class citizens during most of the nineteenth century. In 1868, for example, racial segregation of public schools was permitted throughout the South and in eight northern states. The gallery of the U.S. Senate was itself segregated by race during the debate of the Equal Protection Clause. During the first half of the nineteenth century, every state proscribed married women from devising a will, owning or inheriting property, entering into a contract, or exercising almost any other basic civil right afforded to women in the modern United States. Indeed, the common law recognized no existence for married women independent from their husbands. By marriage, the husband and wife became one person in law, and that person was the husband.
Thus, the Framers' original understanding of the Fourteenth Amendment has not provided a useful yardstick to measure the Supreme Court's interpretation of the Due Process and Equal Protection Clauses. Since the mid-1940s, the Supreme Court has strayed further from the Framers' original understanding, recognizing controversial privacy rights to use contraceptives (griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 ), obtain abortions prior to the third trimester of pregnancy (roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 ), and view obscene pornographic material in the privacy of one's own home (Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 ). In 1996 the Supreme Court held that the Equal Protection Clause had been violated by an amendment to the Colorado constitution prohibiting legislative, judicial, or executive action at the state or local level from protecting homosexual persons from discrimination in romer v. evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996).
The Supreme Court has extended the reach of the Fourteenth Amendment to private actors when they become so entwined with state or local government that they become, in effect, state actors. In Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001), the Court held that a state athletic association was so closely connected with the public schools as to become a state actor. The association sought to curtail the alleged football recruiting abuses of Brentwood Academy, a private school with a very successful football program.
Brentwood Academy sued the association and alleged that it had violated the Fourteenth Amendment. The association was not a part of state government, but the Supreme Court held that the state had delegated authority to regulate school athletic programs to the organization. The Court applied the general principle where there is such a "close nexus between the State and the challenged action," seemingly private behavior "may be fairly treated as that of the State itself."
Amar, Akhil Reed. 1992. "The Bill of Rights and the Fourteenth Amendment." Yale Law Journal 101.
Curtis, Michael Kent. 1993. "The 1859 Crisis over Hinton Helper's Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment." Chicago-Kent Law Review 68.
Curtis, Michael Kent. 1988. Review of No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights in Harvard Law Review 101.
Rierson, Sandra L."Race and Gender Discrimination: A Historical Case for Equal Treatment Under the Fourteenth Amendment." Duke Journal of Gender Law and Policy 1.
Stone, Lawrence. 1977. The Family, Sex, and Marriage in England 1500–1800. Weidenfeld & Nicolson.
The Fourteenth Amendment to the U.S. Constitution is a product of the post–Civil War Reconstruction (1865–1877) effort to protect the rights of the former slaves. It is best known for its definition of citizen, which it defined as a person born in the United States or "naturalized" (granted citizenship). It also bestowed on U.S. citizens equal rights under the law. The result was to limit drastically the power of states to define citizenship or to treat their citizens in a discriminatory fashion. Thus, the states were prohibited from denying a person equal protection under the law. The meaning of this development in the long-term debate over federalism versus states' rights was that henceforth the federal government would assume the ultimate responsibility for protecting the civil rights of citizens. As part of this ruling, the Fourteenth Amendment also declared that states must respect every person's right to due process of law.
The Fourteenth Amendment touched on several other matters that had great relevance at the time of the amendment's enactment, although they are less well-known at the close of the twentieth century. One was the provision that reduced the number of representatives and presidential electors apportioned to a state if that state refused to allow any of its male citizens over the age of 21 the right to vote. This language was intended to prevent the former states of the Confederacy from gaining political power as a result of the freeing of the slaves if those states prevented their former slaves from voting. (Under the "three-fifths compromise" in the Constitution, each slave had been counted as three-fifths of a citizen for the purpose of determining the number of congressmen and presidential electors that the states could claim. Now that the slaves were declared free under the Emancipation Proclamation and the Thirteenth Amendment, they each counted as a full citizen. This had the unintended effect (from the standpoint of most of the northern members of Congress) of increasing the political power of the former Confederate states. The Fourteenth Amendment attempted to redress the balance by ruling that if a state were guilty of denying the voting rights of any of its citizens, its entire population of former slaves would now not be counted for the purposes of figuring out the number of presidential electors or representatives that the state could have.
The Fourteenth Amendment also denied former Confederates the right to hold office in federal or state governments. In addition, this amendment established the validity of the country's public debt. It also stated that the United States would not assume responsibility for the debts of the former Confederate government or of the states that had participated on the South's side in the American Civil War (1861–1865). The amendment also stated that the federal government would not compensate former slave owners who had been deprived of their slaves as a result of the war or in accordance with the Thirteenth Amendment.
The Fourteenth Amendment had several unfore-seen consequences. Whereas the Constitution and the Bill of Rights had tried to protect the individual from the power of the federal government, the Fourteenth Amendment sought to protect the individual from the power of the state. Yet it was purposely vague on some crucial matters. One was the question of African Americans in the North. There were enough congressmen who thought that something should be done to protect the ex-slaves in the South, but who feared to offend white supremacy in the North. They spoke in generalities about reducing the total apportionment of representatives and presidential electors if the state violated the voting right of male citizens. The result was that several northern states still denied the right to vote to their African American residents because there were so few African Americans in the North that the penalty was negligible. The language was, however, gender-specific and implicitly denied the vote to women, a fact that attracted the attention of feminist activists.
The most ironic consequence of the Fourteenth Amendment was that throughout the later years of the nineteenth century it was invoked more often in defense of corporate America than in defense of black America. The railroad companies' trial lawyers, for instance, convinced the courts that the Fourteenth Amendment's clause that no state "shall deprive any person of life, liberty, or property, without due process of law. . ." could be invoked to protect the corporations, which, they argued, were legally "persons," against the regulation of the industry on the state level.
Just as the language banning "restraint of trade" in the Sherman Anti-Trust Act of 1890 was most frequently used against picket lines and strikes rather than against monopolies, the Fourteenth Amendment's language was often used by corporate lawyers to protect the emerging post–Civil War concentrations of economic power.
All persons born or naturalized in the United States are subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
fourteenth amendment, u.s. constitution
See also: Sherman Anti-Trust Act, Thirteenth Amendment
Berger, Raoul. The Fourteenth Amendment and the Bill of Rights. Norman, OK: University of Oklahoma Press, 1989.
Graham, H. J. Everyman's Constitution: Historical Essays on the Fourteenth Amendment, The Conspiracy Theory, and American Constitutionalism. Madison, WI: State Historical Society of Wisconsin, 1968.
James, Joseph B. The Framing of the Fourteenth Amendment. Urbana, IL: University of Illinois Press, 1956.
Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, MA: Harvard University Press, 1988.
Ten Broek, Josephus. The Anti-Slavery Origins of the Fourteenth Amendment. Berkeley, CA: University of California Press, 1951.
Coming approximately ten years after the Dred Scott decision had ruled that all slaves and their descendants were not citizens of the United States, the Fourteenth Amendment, ratified on July 28, 1868, granted both state and federal citizenship to "all persons born or naturalized in the United States" (with the notable exception of Native Americans living on reservations). It also pledged that no state shall "abridge the privileges or immunities" of citizens nor "deny to any person within its jurisdiction the equal protection of the laws." Along with the Fifteenth Amendment, which sought to extend the franchise to all blacks, the Fourteenth Amendment was drafted by Radical Republican members of Congress, who were uneasy with President Andrew Johnson's lenient policies toward the South in the wake of the Civil War. These Republicans aimed at giving meaning to the freedom that had been legally granted to slaves by the Thirteenth Amendment. In particular, they hoped to invalidate the discriminatory black codes that had been passed by various state legislatures.
Radical Republicans were also concerned that, with the emancipation of slaves, southern representation in Congress would dramatically increase when the former Confederate states reentered the Union—according to Article I, Section 2 of the Constitution, only three-fifths of the slave population had previously been counted for purposes of representation. To ensure that newly freed blacks would have a voice in choosing their political leaders, Section 2 of the amendment promised to reduce congressional representation proportionately for each male citizen denied suffrage. (Despite severe restrictions placed on black suffrage, however, this section was never applied.)
Section 3 of the Fourteenth Amendment excluded former Confederates from holding political office even if they had previously taken an oath to support the U.S. Constitution. This section aimed at keeping former Confederate officers from regaining political office. It had only a temporary effect. Section 4 declared the government of the United States not liable for the Confederate debt.
The intentions of the Radical Republicans were undermined by a series of conservative Supreme Court decisions. In the Slaughterhouse Cases (1873), the Court held that state law, rather than federal law, controlled the basic civil liberties of citizens. Further, it interpreted the "privileges and immunities" of citizens in a narrow way, covering such matters as protection on the high seas. The Court also declared that states were not required to enforce the liberties guaranteed in the Bill of Rights. In the 1883 Civil Rights cases, the Court ruled that the Fourteenth Amendment did not ensure citizens equal access to public accommodations, and in Plessy v. Ferguson (1896), that racial segregation of railways was not a violation of the amendment's "equal protection" clause.
After World War II, a different interpretation of the Fourteenth Amendment evolved from a less conservative Supreme Court. The "equal protection" clause began to be used to fight racial discrimination in such cases as Brown v. the Board of Education of Topeka, Kansas (1954), against school segregation, and the Reapportionment Cases (1964), against unfairly drawn state legislative districts. Additionally, the Court came to hold a broader interpretation of the civil rights protected under the Fourteenth Amendment. Shelley v. Kraemer (1948) outlawed racially restrictive covenants in housing. U.S. v. Guest (1966) applied the Fourteenth Amendment to cover private violence that was racially motivated. Under Chief Justice Earl Warren, the Court ruled, in a series of cases, that most of the Bill of Rights had to be respected by the states. The liberal Court of the late 1960s and early 1970s found other rights guaranteed by the amendment, such as the right to use birth control devices (Griswold v. Connecticut, 1965) and the right to an abortion (Roe v. Wade, 1973). The appointees of several conservative Republican presidents from the 1970s and 1980s, however, have interpreted the rights protected under the amendment more narrowly.
It took approximately a century before the federal government was willing to enforce the provisions of the Fourteenth Amendment as its authors had envisioned. The amendment will no doubt continue to be interpreted in ways that will either broaden or narrow federal protection of civil rights, according to the political climate of the nation and the makeup of the Court.
Berger, Raoul. The Fourteenth Amendment and the Bill of Rights. Norman: University of Oklahoma Press, 1989.
Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, Mass.: Harvard University Press, 1988.
walter friedman (1996)
Congress proposed three amendments to the U.S. Constitution in the years after the American Civil War (1861–65). The second proposal, which became the Fourteenth Amendment, established the rights of American citizens to be free from unfair state laws. The rights to due process of law and to equal protection under the law, both from the Fourteenth Amendment, have been particularly important in U.S. Supreme Court cases since 1868.
After the Civil War and the nationwide emancipation of slaves in 1865, southern states enacted legislation called Black Codes to restrict the rights of newly freed blacks. Congress attempted to obstruct the Black Codes by passing the Civil Rights Act of 1866 . The act attempted to define citizenship and to guarantee certain individual rights by federal law.
The act proved to be difficult to uphold, so Congress was motivated to turn its provisions into a constitutional amendment. Incorporating many elements of the Civil Rights Act, Congress proposed the Fourteenth Amendment in June 1866. To become law, a constitutional amendment must be ratified, or approved, by at least three-fourths of the states. The Fourteenth Amendment achieved ratification in July 1868. Under federal Reconstruction law, support for the amendment was a requirement
The Fourteenth Amendment has five sections. The first section sets forth a national definition of citizenship. It says all people born or naturalized in the United States are citizens of the country and also of the state in which they reside. Section one makes it unlawful for states to deny a citizen the rights of citizenship and to deny any person due process of law and equal protection under the law.
Section two was inspired by the southern practice of denying voting rights to the black population. Under the three-fifths compromise of the original Constitution, every five slaves were counted as equal to three whites. Representation in Congress was established using this rule. With slaves acquiring both freedom and citizenship, the balance of representatives for southern states increased. If voting rights were denied to the black population, the effect of greater representation would simply give southern whites more political power.
Section two of the Fourteenth Amendment revised the three-fifths formula. It mandated that representation in the House of Representatives and the electoral college (a body of voters who represent each state to elect the president) be based on a state's population as a whole. If a state chose to deny a portion of its male citizens the right to vote, representation would be reduced proportionately. While it did not guarantee the right to vote, section two threatened southern states with a loss of representation if state law denied blacks the right to vote.
Sections three and four were also motivated by contemporary issues. Section three took away the power of the president to pardon rebels. Those who had been in military service or held a state or national office prior to 1860 had taken an oath to support the Constitution. As a result, those who had made such an oath but had then participated in the Confederate rebellion were denied the ability to hold any national or state civil or military office. Congress could remove this restriction for an individual with a two-thirds vote in both chambers.
Section four voided all debts acquired to support the rebellion and eliminated all claims for compensation for emancipated slaves. The fifth section gave Congress authority to pass further legislation as needed to enforce the provisions of the Fourteenth Amendment.
Due Process and Equal Protection
Two clauses from section one of the Fourteenth Amendment are the Due Process Clause and the Equal Protection Clause. The Due Process Clause says states shall not deny people “life, liberty, or property, without due process of law.” The meaning of “due process of law” is not certain. In criminal cases, courts usually interpret it to mean that people must have notice of the charges against them and a fair hearing. In civil cases, it often means that the government cannot enforce a law that is arbitrary or unreasonable. These are subjective standards that make fair application of the clause in all cases essentially impossible.
The Equal Protection Clause says states shall not deny people “equal protection of the laws.” In theory, it prevents states from treating different classes of people differently under the law. In reality, most discrimination is lawful if rationally related to a legitimate government purpose. Certain categories of discrimination, however, receive greater protection, such as discrimination based on race or gender. It is harder for such discrimination to survive a challenge under the Equal Protection Clause. The clause, however, applies only to state action, so it does not prevent discrimination by private persons.
Enforcement of the Fourteenth Amendment has had a controversial history. By the 1880s, the Supreme Court was using it to protect the rights of business corporations by calling them “people” under section one. The black population across the United States, however, had to struggle for a century before beginning to realize many of the rights in the Fourteenth Amendment. In the latter half of the twentieth century, the Fourteenth Amendment was the foundation for landmark Supreme Court decisions concerning school segregation , equal housing, and abortion rights.