FOURTEENTH AMENDMENT
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 twentyone
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 against SELF-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 [1856]). 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, 302
U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]).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, 496
U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412
[1990]). 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 eight
articles . . . 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
[1947] [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 statechartered
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 [1965]), 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 [1973]), 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 [1969]). 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.”
FURTHER READINGS
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.
CROSS-REFERENCES
Gay and Lesbian Rights.
