The Fourteenth Amendment: Equal Protection of the Laws

Although the Thirteenth Amendment abolished slavery, it did not resolve the legal status of former slaves under federal and state law.

After the Civil War, many southern states passed “Black Codes” designed to severely restrict the lives of newly freed slaves and keep them in virtual slavery. Through the Fourteenth Amendment, former slaves were granted citizenship and promised “equal protection of the laws.” This protection from unreasonable discrimination eventually extended to other groups as well. The Fourteenth Amendment became the basis for claims of legal equality.

Because the Fourteenth Amendment specifically addressed the states, it drastically expanded the reach of the U.S. Constitution. The Supreme Court used the amendment to apply most provisions in the Bill of Rights to state governments. As a result, the Fourteenth Amendment is cited more often in modern litigation than any other. In fact, many constitutional scholars believe that, through its wide scope and promise of equality, the Fourteenth Amendment created a new Constitution.

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….

This section of the Fourteenth Amendment defines both national and state citizenship, which had previously been left up to the states to decide. In Dred Scott u Sandford (1857), the Supreme Court had ruled that African Americans, free or slave, could never be citizens of the United States. The Fourteenth Amendment overturned this decision by defining citizenship in the Constitution for the first time.

After the Civil War, Congress sought to protect the rights of newly freed slaves. Southern legislatures, dominated by former Confederates, had enacted “Black Codes” to regulate every aspect of the lives of freedmen-forbidding them to vote, own firearms, or travel freely. Congress passed the Fourteenth Amendment in 1866 as the cornerstone to its plan for Reconstruction. Southern states were required to ratify the amendment in order to be readmitted to the Union.

When the amendment was ratified in 1868, “all persons born or naturalized in the United States” automatically became citizens of both the American nation and the state in which they resided. No longer could states keep people, especially African Americans, in a legal no-man’s land by denying them citizenship. However, the Fourteenth Amendment only applied to those persons “subject to the jurisdiction” of the United States-not American Indians. Native Americans were not granted U.S. citizenship until 1924.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

This clause of the Fourteenth Amendment echoes the language in Article IV, which also protects the “privileges and immunities” of citizens.

The question of exactly what rights are covered under “privileges and immunities”-both in Article IV and the Fourteenth Amendment-remains unclear. Some constitutional scholars believe that the principal author of the Fourteenth Amendment, Representative John Bingham of Ohio, intended for the Privileges or Immunities Clause to apply the provisions in the Bill of Rights to state governments.

But the Supreme Court disagreed with this interpretation in the Slaughterhouse Cases (1873). Of course, the Supreme Court eventually did apply most provisions in the Bill of Rights to the states, bit by bit, through the Due Process Clause of the Fourteenth Amendment. Yet in the Slaughterhouse Cases, the Court interpreted the Privileges or Immunities Clause very narrowly, holding that it protected only the rights of national citizenship such as access to the courts and the right to travel to the government’s capital. This limited interpretation resulted in few Supreme Court cases being decided on the Privileges or Immunities Clause. However, in Saenz v. Roe (1999), the Supreme Court resurrected this part of the Fourteenth Amendment, holding that it forbade states to reduce welfare benefits for newly arrived residents because that restricted the right to travel.

“Nor shall any State deprive any person of life, liberty, or property, without due process of law”

The Due Process Clause in the Fourteenth Amendment is identical to that in the Fifth Amendment, except that the former applies directly to the states, whereas the latter restricts the federal government. The Fourteenth Amendment’s Due Process Clause has had two major effects: applying the Bill of Rights to the states through the doctrine of incorporation, and protecting rights that are not specifically listed in the Constitution through substantive due process. Although generally due process means that legal procedures must be fair, substantive due process requires that the content of the law itself be fair.

Incorporation of the Bill of Rights. Originally, James Madison had intended for some provisions in the Bill of Rights to apply to the states. He included among his proposed amendments one that prohibited the states from violating the “equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” Congress rejected this amendment, although Madison considered it “the most valuable amendment on the whole list.”

Therefore, as the Supreme Court ruled in Barron v. Baltimore (1833), the Bill of Rights restricted only the federal government, not the states. But after the Fourteenth Amendment was ratified, the Court held that certain fundamental rights in the Bill of Rights were “incorporated,” or included, in the amendment’s Due Process Clause.

Thus, the Court began the process of nationalizing, one by one, most of the major provisions of the Bill of Rights.
Selective Incorporation. Rather than applying the entire Bill of Rights to the states at once, the Supreme Court used a process of selective incorporation. Under the test outlined by Justice Benjamin Cardozo in Palkov. Connecticut (1937), the Supreme Court would determine whether a right was “fundamental” and necessary to “a scheme of ordered liberty.” If so, that right was incorporated into the Due Process Clause. Advocates of selective incorporation argued that the states should be free to develop new criminal and civil procedures, radier than be limited by the Bill of Rights.

Total Incorporation

Justice Hugo Black, along with others on the Supreme Court, believed that selective incorporation allowed judges too much discretion to choose among rights. Instead, Justice Black supported total incorporation, in which the Bill of Rights would be applied all at once to me states. Black argued that the inclusion of a right in the Bill of Rights meant that by definition it was “fundamental” enough to apply to the states. Black maintained that total incorporation was far less intrusive on the states than the subjective process of selective incorporation.

A Double Standard. Until the Bill of Rights was incorporated to apply to the states, the United States had two drastically different systems of criminal justice. Subject to the limitations in the Bill of Rights, federal prosecutors were required to use search warrants, the exclusionary rule, and trial by jury. However, state prosecutors were not. One reason that the Supreme Court eventually extended most criminal procedure rights to the states was to avoid giving state law enforcement officials incentive to violate the U.S. Constitution. Unincorporated Rights. The Supreme Court has not incorporated all provisions in the Bill of Rights. Those rights in the first eight amendments that have not been applied to the states are: the right to keep and bear arms (Second Amendment); the restriction on quartering troops (Third Amendment); the right to a grand jury indictment (Fifth Amendment); trial by jury in civil cases (Seventh Amendment); and the ban on excessive bail and fines (Eighth Amendment). The Ninth and Tenth Amendments also do not apply to the states, because they do not directly protect individual rights.

Substantive Due Process

As discussed in the chapter on the Ninm Amendment, the Supreme Court has protected unenumerated rights through the Due Process Clause of the Fourteenth Amendment. These rights not specifically listed in the Constitution have often been controversial. Under substantive due process, the Supreme Court decides which rights are “fundamental” and cannot be deprived by the states. These rights are generally categorized as “liberty” interests or “property” interests, because the Fourteenth Amendment states that no person shall be deprived of “life, liberty, or property” without due process of law. The Supreme Court favored property interests from the 1880s to the 1930s, but since then has principally protected liberty interests.

Property Interests

The most famous case upholding a property interest under substantive due process was Lochnerv. New York (1905). Many states tried to regulate working conditions during the late nineteenth century to counteract the social problems of rapid industrialization. The Supreme Court ruled in Lochner that a New York law restricting bakers to sixty-hour work weeks was unconstitutional because it violated their “liberty of contract.” Bakers should be allowed to work however long they wished, said the Court-although the law was being opposed by bakeries, not bakers. The Court’s decision reflected an economic policy of laissezfaire, or opposing government regulation of business. But Justice Oliver Wendell Holmes declared in dissent that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a popular book advocating social Darwinism.

The Lochner case became symbolic of the Supreme Court imposing its own values on legislative decisions through substantive due process. This criticism of the Court increased when it routinely overturned New Deal legislation. Finally, in United States v. Carotene Products Company (1938), the Supreme Court began to back away from the laissez-faire policy. Instead, the Court declared that it would henceforth presume most economic regulations to be constitutional, but closely monitor infringements on individual liberties it regarded as fundamental.

Liberty Interests

During the 1920s, the Supreme Court used substantive due process to overturn state laws that prohibited the teaching of foreign languages and banned private schools. Other rights upheld under substantive due process have been the right to travel, the right to privacy, and the right to refuse medical treatment. Two of the most controversial issues that the Court has addressed under substantive due process are abortion and the right to assisted suicide.

Abortion

In Roe v. Wade (1973), the Supreme Court held that the right to privacy included a woman’s right to have an abortion. The Court ruled that the concept of personal liberty in the Fourteenth Amendment was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Court also held that a fetus was not a person under the Fourteenth Amendment, although the Court had previously ruled that a corporation was. The amendment itself refers to “all persons born,” and the threshold for legal rights has traditionally been birth.
Justice Harry Blackmun’s majority opinion in Roe was filled with medical terminology, befitting a former counsel for the Mayo Clinic.

Following obstetrics of the time, Blackmun divided a pregnancy into three stages, or trimesters, during which a woman’s interest in her privacy and the state’s interest in the “potentiality of human life” were weighed. In the first trimester, a woman’s privacy was paramount, and states could not forbid abortions. During the second trimester, states could regulate abortions to safeguard the health of the woman, but not outlaw them. In the third trimester, states could forbid abortions as the fetus became viable and able to live outside the woman’s body-unless the life or health of the woman were in jeopardy.

With advances in medical technology, Roe’s trimester framework became outdated. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court upheld a woman’s right to an abortion but abandoned the trimester formula. Instead, states were allowed to regulate abortions if they did not place an “undue burden” on a woman’s constitutional right to an abortion. According to the Court, an undue burden was a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

In Stenberg v. Carhart (2000), the Supreme Court faced a challenge to a controversial procedure known as partial-birth abortion. This method, considered safest for women undergoing late-term abortions, involves removing the fetus from the uterus feet first and then collapsing the skull before complete extraction. In the Stenberg case, the Court struck down a Nebraska law outlawing partial-birth abortions as an “undue burden,” because it was so broadly written that it could apply to all abortion methods and did not include an exception for safeguarding the life and health of the woman.

Assisted Suicide

The Supreme Court ruled that the Fourteenth Amendment protected a right to refuse medical treatment in Cruzan a Director, Missouri Department of Health (1990). However, the Court also held that a state could require strong evidence that an incompetent person-such as accident victim Nancy Cruzan, who was in a persistent vegetative state-wanted to die in such circumstances before it ended medical treatment. In 1997, the Court ruled that a general right to commit suicide is not protected by substantive due process, thereby upholding state laws prohibiting physician-assisted suicide.

“Nor deny to any person within its jurisdiction the equal protection of the laws”

Known as the Equal Protection Clause, this provision in the Fourteenth Amendment contains the first use in the Constitution of the word “equal” regarding the rights of individuals. The Equal Protection Clause prohibits unreasonable discrimination. If a law treats people differently, the state must demonstrate a good reason for that difference. Usually, the courts will defer to the legislature if it can show a “rational basis” for the law, a very easy test. But the Supreme Court has ruled that the government must meet a much higher test, and prove a “compelling interest” in the law, if it involves a “fundamental” right, such as free speech or voting, or a “suspect” class such as race.

The Supreme Court has ruled that the Due Process Clause of the Fifth Amendment forbids unreasonable discrimination by the federal government in the same way that the Equal Protection Clause of the Fourteenth Amendment restricts the states. The Court also held in the Civil Rights Cases (1883) that the Fourteenth Amendment only limits discrimination by the government, not private individuals or groups. In the Slaughterhouse Cases (1873), the Court initially ruled that the Equal Protection Clause was intended only to protect African Americans, but later decisions included other groups as well.

Racial Discrimination

Current Supreme Court rulings hold that one of the most pernicious forms of discrimination is that based on race, which is regarded as a “suspect class.” But such was not always the case. For many years the Court upheld racially segregated public facilities, and it allowed Japanese American citizens to be interned during World War II.

Separate But Equal

The Supreme Court ruled in Plessy v. Ferguson (1896) that racial segregation in public facilities, if they were allegedly equal in quality, did not violate the Equal Protection Clause. Under this doctrine of “separate but equal,” the Court upheld a Louisiana law that required separate railroad cars for whites and blacks. In his lawsuit, Homer Plessy maintained that segregation, enforced by the Jim Crow laws of the South, imposed a “badge of inferiority” on African Americans. But the Supreme Court’s 8-1 majority disagreed. “If this be so,” said the Court, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” The lone dissenter in Plessy, Justice John Marshall Harlan, said in a famous dissent that the Constitution should be “colorblind” and not allow segregation.

Despite the Plessy ruling, segregated facilities for blacks were hardly ever equal to those for whites, especially in education. The National Association for the Advancement of Colored People (NAACP) devised a strategy to challenge segregation in education by suing to enforce the “separate but equal” ruling in Plessy. The NAACP reasoned that states would find it too expensive to maintain separate but truly equal public schools. In several NAACP cases during the 1930s and 1940s, the Supreme Court ordered that states admit black students to all-white graduate schools when black facilities were unequal or nonexistent.

Internment of Japanese Americans

Information about the Internment of Japanese Americans is available here.

Separate Is Unequal

After World War II ended, the NAACP challenged segregation in elementary and secondary schools in Brown v. Board of Education of Topeka, Kansas (1954). The Supreme Court ruled in Brown that “separate educational facilities are inherently unequal,” unanimously overturning the Plessy decision. The Court held that, contrary to Plessy, segregation did create in black children “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” In a study by psychologist Kennedi Clark, which the Court cited in its opinion, black children had chosen white dolls as being superior to black dolls. The Supreme Court ruled in a separate decision one year later that school districts should begin desegregation “with all deliberate speed.”

Critics of the Brown decision argued that it relied too heavily on psychological data, not law, and that education was traditionally a power reserved exclusively to the states. Southern states organized massive resistance to the decision; 101 members of Congress signed a “Southern Manifesto” in 1956 opposing the Supreme Court’s authority to desegregate the schools. In 1957, President Dwight Eisenhower ordered the 101st Airborne Division to protect nine black students who integrated Central High School in Little Rock, Arkansas. Some school districts, including Little Rock, closed entirely until federal courts reopened them. In 1969, after fifteen years of delay, the Supreme Court finally ruled that schools must be desegregated “at once.”

Besides education, the Supreme Court also struck down segregation in transportation, prisons, and public parks. In addition, the Court declared a Virginia law that banned interracial marriages to be unconstitutional. Yet it took a massive civil rights movement, in which thousands of citizens risked their lives, for the Supreme Court’s desegregation decisions to be enforced.

Affirmative Action

Congress passed the Civil Rights Act of 1964 to prohibit discrimination in employment based on race, religion, or sex.

However, the law did not address the effects of past discrimination, which could impede a person’s success in the job market. Consequently, the federal government enacted a program of affirmative action, in which those who receive government funding must take positive steps to offer training and employment to groups that have suffered discrimination in the pastsuch as racial minorities and women. However, in Richmond v. Croson (1989), the Supreme Court said that such affirmative action programs at the state and local level must prove a “compelling interest” for discriminating against white men.

In education, the Supreme Court upheld a limited version of affirmative action in Regents of the University of California v. Bakke (1978). Although the Court ruled that strict racial quotas violated the Equal Protection Clause, it allowed universities to use race as one of several factors in admissions decisions. Wrote Justice Harry Blackmun: “In order to get beyond racism, we must first take account of race.” But during the 1990s, several federal appellate courts ruled that race could not be considered at all during admissions decisions for state universities. As of 2001, however, the Supreme Court had not reconsidered its Bakke decision.

Gender Discrimination

Note: the main entry about gender discrimination is located here.

SECTION 2

The portion “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” of the Fourteenth Amendment specifically counteracts the provision in Article I, Section 2, of the Constitution stating that slaves shall count as three-fifths of a person for representation purposes. Although the Thirteenth Amendment abolished slavery, it did not directly change the representation formula in Article I.

With the portion “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”, the Fourteenth Amendment introduced the word “male” to the Constitution for the first time. The amendment explicitly links the right to vote to being male, and some advocates of women’s suffrage opposed it for that reason. Despite this language, some women sued in federal court, claiming that voting was one of the privileges and immunities granted to them as citizens under the Fourteenth Amendment. But in Minor Happersett (1875), the Supreme Court ruled that voting was not included as an automatic right of citizenship-for women or anyone else. Specific constitutional amendments were necessary to extend suffrage to black men women, and eighteen-year-olds.

The purpose of the provision “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” was to punish states for denying African American men the right to vote, although it did not forbid such practices.

Section 2 also empowers states to deny the vote to veterans and supporters of the Confederacy, who were regarded as traitors. Today, it allows felons t< be deprived of the right to vote.

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 a! 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 3 prevented those who had held a federal office or certain state offices and then supported the Confederacy-thus committing treason- from becoming federal or state officials after the Civil War. At first, this limitation even applied to postmasters. But Congress narrowed the restriction in 1872, and then removed it entirely in 1898.

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 4 acknowledges the validity of Union debts incurred during the Civil War, but makes clear that the neither the U.S. government nor state governments will assume any Confederate debts. This section also specifically forbids any reimbursement to slaveholders for the emancipation of slaves.

SECTION 5

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
The Fourteenth Amendment expanded federal power by giving Congress the authority to pass enabling legislation to enforce its provisions. However, in early cases the Supreme Court limited the scope of Section 5.

In the Civil Rights Cases (1883), the Court ruled that Congress could not prohibit private discrimination in the Civil Rights Act of 1875, thus instituting the state action requirement. Therefore, Congress relied on its Article I power to regulate interstate commerce when it passed the Civil Rights Act of 1964 to ban discrimination in privately owned motels and restaurants. But in a series of cases the Supreme Court did uphold the Voting Rights Act of 1965, which prohibited discrimination in election procedures, to be a valid exercise of congressional power under Section 5. More recently, the Court has once again moved to limit the reach of Section 5.

In Adar and Constructors v. Pena (1995), the Supreme Court ruled that Congress did not have more powers under Section 5 than the states to enact affirmative action programs. And in City of Boerne a Flores (1997), the Court struck down the Religious Freedom Restoration Act (RFRA), holding that Congress could only act to remedy violations of rights, not redefine Supreme Court interpretations of what those rights were.