Fourteenth Amendment

Fourteenth Amendment,

addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections.

Section 1

Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens of their state of residence; the citizenship of African Americans was thereby established and the effect of the Dred Scott CaseDred Scott Case,
argued before the U.S. Supreme Court in 1856–57. It involved the then bitterly contested issue of the status of slavery in the federal territories. In 1834, Dred Scott, a black slave, personal servant to Dr. John Emerson, a U.S.
..... Click the link for more information. was overcome. The section forbids the states to abridge the privileges and immunities of U.S. citizens, to deprive any person of life, liberty, or property without due process of law (a similar provision restraining the federal government is in the Fifth Amendment), and to deny any person the equal protection of the laws.

Section 1 has been used extensively by the U.S. Supreme Court to test the validity of state legislation. The privileges and immunities of citizenship have never been defined by a majority of the court, but some justices have argued that among the activities envisaged are freedom to cross state boundaries and freedom to gather for peaceable discussion of legislation. The court has preferred to base its decisions on the due process and the equal protection clauses, which apply to all persons (the term person was soon applied to corporations as well as human beings) irrespective of citizenship.

Due Process of Law

In the early view of the court, a deprivation of life, liberty, or property simply meant the punishment for crime. The requirements of due process would be met by fair procedure, including notice to the defendant and an open trial with the right to counsel. In time, however, the court concluded that due process was not limited to procedural considerations but had a substantive aspect as well. Thus, even if proper legal procedure were observed, the substantive ground on which a person was deprived of life, liberty, or property might in itself violate due process. The constitutionality of much state legislation was opened to question, and so many laws were attacked that at times about one third of the cases before the Supreme Court dealt with due process. In early due process cases the court did not place limitations on traditional exercises of the police powerpolice power,
in law, right of a government to make laws necessary for the health, morals, and welfare of the populace. The term has greatest currency in the United States, where it has been defined by the Supreme Court as the power of the states to enact laws of that type even
..... Click the link for more information. . The constitutionality of state economic regulation was upheld in such early Fourteenth Amendment precedents as the Slaughterhouse CasesSlaughterhouse Cases,
cases decided by the U.S. Supreme Court in 1873. In 1869 the Louisiana legislature granted a 25-year monopoly to a slaughterhouse concern in New Orleans for the stated purpose of protecting the people's health.
..... Click the link for more information. (1873) and Munn v. IllinoisMunn v. Illinois,
case decided by the U.S. Supreme Court in 1876. Munn, a partner in a Chicago warehouse firm, had been found guilty by an Illinois court of violating the state laws providing for the fixing of maximum charges for storage of grain (see Granger movement).
..... Click the link for more information. (1877). However, subsequent due process interpretations of the Fourteenth Amendment did severely restrain the power of the states to legislate on economic matters.

Equal Protection

The equal protection clause, which was also brought to bear on the economic legislation of the states, was held to invalidate restraints on corporations from which other businesses were exempted. In several early cases this clause was used to foster individual economic rights, with the court striking down state laws that prevented aliens from pursuing certain occupations. However, African Americans who claimed that the discrimination they suffered at the hands of private persons (e.g., exclusion from hotels) denied them the equal protection of law were refused redress by the court, which held that the Fourteenth Amendment was concerned with official state action only. In 1896, in the Plessy v. FergusonPlessy v. Ferguson,
case decided by the U.S. Supreme Court in 1896. The court upheld an 1890 Louisiana statute mandating racially segregated but equal railroad carriages, ruling that the equal protection clause of the 14th amendment to the U.S.
..... Click the link for more information. case, the court enunciated the view that the states might provide segregated facilities for African Americans (e.g., in education), so long as they were equal to those afforded white persons: the so-called separate but equal doctrine.

The court substantially maintained the views outlined above until the 1930s, when drastic reinterpretations were made. (For factors producing the change, see Supreme Court, United StatesSupreme Court, United States,
highest court of the United States, established by Article 3 of the Constitution of the United States. Scope and Jurisdiction
..... Click the link for more information. .) The court thereafter permitted state legislatures to make economic regulations without regard to the question of whether the businesses concerned were dedicated to the public interest. The states, it was also held, might meet the requirements of equal protection even if distinctions based upon "reasonable classifications" were made. Thus, corporations, with their great potential power and size, might reasonably be subjected to more severe restrictions than other types of business organizations. While the states were given greater freedom in enacting economic legislation, their power to limit personal liberties was brought under greater restraint.

Gradually, the protection afforded by the Bill of Rights against federal actions was almost entirely extended to the states. In a number of decisions, it was held that the provisions of the First Amendment were made applicable to the states by the substantive aspect of the due-process clause, in the so-called incorporation doctrine. Thus, the states, like the federal government, were forbidden to favor or suppress any religious establishment or to deny freedom of speech, of the press, and of peaceable assembly. With the new attitude of the court, the equal protection clause became one of the main weapons of those who were determined that African Americans should enjoy the same rights as other Americans. Although there had been decisions forbidding segregation on interstate transportation and ruling that state courts cannot enforce a restrictive covenant (an agreement that a buyer will not resell to certain categories of persons, e.g., African Americans or Jews), it was not until 1954 that the "separate but equal" doctrine was firmly repudiated (see Brown v. Board of Education of Topeka, Kans.Brown v. Board of Education of Topeka, Kans.,
case decided by the U.S. Supreme Court in 1954. Linda Brown was denied admission to her local elementary school in Topeka because she was black.
..... Click the link for more information. ).

In recent years, the Supreme Court has also used the equal protection clause to invalidate legislation discriminating against women, to order the apportionment of state legislatures on the basis of population alone. The Court has also used the due process clause to extend to the states the protection against limitations on the right of privacyprivacy, right of,
the right to be left alone without unwarranted intrusion by government, media, or other institutions or individuals. While a consensus supporting the right to privacy has emerged (all recently confirmed justices of the Supreme Court have affirmed their belief
..... Click the link for more information. and women's right to an abortion (see Roe v. WadeRoe v. Wade,
case decided in 1973 by the U.S. Supreme Court. Along with Doe v. Bolton, this decision legalized abortion in the first trimester of pregnancy.
..... Click the link for more information. ). The 1986 case of Bowers v. Hardwick, however, came as a blow to the right of privacy. The Court ruled that individual state antisodomy laws were constitutional, and thus that the right of privacy was not violated by laws criminalizing homosexual acts in those states, but in 2003 the Court reversed itself and voided all antisodomy laws.

Sections 2–5

Section 2 provides for apportionment of membership in the House of Representatives on the basis of the whole state population, excluding Native Americans not taxed. A supplemental provision, intended to protect African-American suffrage but never implemented, allows reduction of the congressional representation of a state if male citizens over 21 years old are forbidden to vote. (The main effective constitutional guarantee of African-American suffrage has been the Fifteenth Amendment (adopted 1870), which forbids the United States or any state to abridge the right to vote on account of race, color, or previous condition of servitude.) Section 3 of the Fourteenth Amendment excludes from political office persons who, having sworn to uphold the U.S. Constitution (e.g., army officers and members of Congress) violate this oath, as in the case of those who aided the Confederacy in the Civil War; Congress can remove this disability by a two-thirds vote of each house. Section 4 confirms the public debt but makes void all claims arising from credit extended to the Confederacy or from the loss of slaves. By Section 5, Congress is empowered to enact legislation enforcing the foregoing sections.

Bibliography

See M. K. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); W. E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Document (1988).

Fourteenth Amendment

Related to Fourteenth Amendment: Tenth Amendment, Sixteenth Amendment

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 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 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, 302U.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, 496U.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 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[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 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 [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."

Cross-references

Gay and Lesbian Rights.

Fourteenth Amendment

Fourteenth Amendment

Fourteenth Amendment,

Section 1

Due Process of Law

Equal Protection

Sections 2–5

Bibliography

Fourteenth Amendment

Fourteenth Amendment

Further readings

Cross-references

Fourteenth Amendment

Words related to Fourteenth Amendment

noun an amendment to the Constitution of the United States adopted in 1868

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