The Fourteenth Amendment

THE FOURTEENTH AMENDMENT

The Fourteenth Amendment addresses many aspects of citizenship and the rights of citizens. The most commonly used -- and frequently litigated -- phrase in the amendment is"equal protection of the laws", which figures prominently in a wide variety of landmark cases, includingBrown v. Board of Education(racial discrimination),Roe v. Wade(reproductive rights),Bush v. Gore(election recounts),Reed v. Reed(gender discrimination),andUniversity of California v. Bakke(racial quotas in education).

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.

Privileges and Immunities Clause

The Privileges and Immunities Clause ofArticle IV, Section 2 of the Constitution states that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." This clause protects fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens. However, the Privileges and Immunities Clause extends not to all commercial activity, but only to fundamental rights.

Slaughterhouse Cases

A 1873 U.S.Supreme Courtdecision,83 US 36, on a series of cases in which the Court expressed its first interpretation of the privileges and immunitiesclause of the Fourteenth Amendment. The court interpreted this clause as protecting the rights people have by virtue of their US citizenship, not by virtue of their citizenship of a state. It then defined the rights of US citizens narrowly, excluding civil rights. The dissents, and modern critics of the case, say that this effectively rendered the clause meaningless.

Due Process:Introduction

The Constitution states only one command twice. TheFifth Amendmentsays to the federal government that no one shall be "deprived of life, liberty or property without due process of law." TheFourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures. Most of this essay concerns that promise. We should briefly note, however, three other uses these words have had in American constitutional law.

Incorporation

The Fifth Amendment's reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states. Did the Fourteenth Amendment change that? In the middle of the Twentieth Century, about a century after its adoption, a series of Supreme Court decisions found that the Due Process Clause "incorporated" most of the important elements of the Bill of Rights and made them applicable to the states. These decisions almost obliterated any difference between the Bill of Rights and the Fourteenth Amendment. If a Bill of Rights guarantee is "incorporated" in the "due process" requirement of the Fourteenth Amendment, state and federal obligations are exactly the same. The right to a jury trial, to take just one example, means the same in state and federal courts; there are no differences about the number of jurors required, whether they have to be unanimous in their verdicts, and so forth.

Equal Protection of the Laws.

If the courts stretched Fourteenth Amendment “due process” to apply the Bill of Rights to the states, they stretched Fifth Amendment “due process” to require the federal government to afford equal protection of the laws. The Equal Protection Clause of the Fourteenth Amendment forbids the states from establishing segregated schools or otherwise discriminating invidiously against some of their citizens. There is no equal protection clause in the Bill of Rights. In a case involving segregation in the schools of Washington, D.C., which as the nation's capital is a federal enclave governed by federal law, the Supreme Court found that the Due Process Clause operates against the federal government just as the Equal Protection Clause does against the states.

Substantive due process

The words “due process” suggest a concern with procedure, and that is how the Due Process Clause is usually understood. We have just seen, however, that the clause has been taken as a kind of proxy for other rights. In those cases, the rights were actually expressed somewhere in the Constitution, but only as rights against federal (or state) action. What about rights the Constitution does not mention — “unnamed rights,” like the right to work in an ordinary kind of job, or to marry, or to raise one's children as a parent? The dominant constitutional controversy of the first third of this century, which still echoes in the arguments about abortion and other “privacy” issues like sexual preference, was about an idea called “substantive due process.” The question was whether "due process of law" might put substantive limits on what legislatures could enact, as well as require procedures of judges and administrators. Thus, in 1905, the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, because it thought the public benefit of the law did not justify depriving the bakers of their right to work under whatever terms they liked. For thirty years, conservative judges sometimes used this idea to find legislative judgments about social or economic programs invalid, retarding the emergence of social welfare legislation. In the late 1930's, after years of sharp criticism, the substantive due process approach was repudiated for "economic regulation." Many think the idea is still vital as a barrier to legislation curbing other individual liberties.

The promise of legality and fair procedure

While the text of the due process clause is extremely general, the fact that it appears twice makes clear that it states a central proposition. Historically, the clause reflects theMagna Cartaof Great Britain, King John's thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes that country's Seventeenth Century struggles for political and legal regularity, and the American colonies' strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause often thought to embody that commitment.

The clause also promises that before depriving a citizen of life, liberty or property, government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesn't say anything about discipline. Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.”

How can we know whether process is due (what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If "due process" refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling just to accept legislative judgments have to find answers somewhere else. The Supreme Court's struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government.

In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law. Occasionally it might act in other ways, for example in assessing taxes. In two decisions at the very beginning of the Twentieth Century the Supreme Court held that only politics (the citizen's “power, immediate or remote, over those who make the rule”) controlled the state's action setting the level of taxes, but if the dispute was about a taxpayer's individual liability, not a general question, the taxpayer had a right to some kind of a hearing (“the right to support his allegations by arguments however brief and, if need be, by proof however informal”). This left the state a lot of room to say what procedures it would provide, but did not permit it to deny them altogether. Another early case suggested flexibility about the timing and nature of a required hearing. When a health inspector decided some chickens in cold storage had rotted, he didn't have to hold a hearing before he could seize and destroy them, so they could not be sold; but the owner of the chickens could sue the inspector afterwards, and if it convinced the jury that the chickens were not rotten, make the inspector repay their value.

What procedures are due

Probably the hardest of the analytic questions arising under the procedural aspect of “due process” is this one, just what procedures are constitutionally due? This is a question that has to be answered for criminal trials (where the Bill of Rights provides many explicit answers), for civil trials (where the long history of English practice provides some landmarks), and for administrative proceedings, which did not appear on the legal landscape until a century or so after the Due Process Clause was first adopted.

The evolution of Supreme Court cases and policies defining what procedures are due is quite complex, but few precedents exist. Therefore, one cannot expect to list the elements of "required procedures" under American law. In the case involving a ten-day suspension from public school, a chance to tell the school principal (someone other than the complaining teacher) one's own side of the story was sufficient. Suspension of welfare payments may still be held to require all the elements specified in Goldberg, and actual termination of those payments, somewhat more. Nonetheless, an analysis made by the late Judge Henry Friendly in his well-regarded article, "Some Kind of Hearing," generated a list that remains highly influential, as to both content and relative priority:

An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Again, these are simply the kinds of procedures that might be claimed in a "due process" argument, roughly in order of their perceived importance, and not a list of procedures that will in fact be required.

Personal Autonomy

The right of privacy has evolved to protect the freedom of individuals to choose whether or not to perform certain acts or subject themselves to certain experiences. This personal autonomy has grown into a 'liberty' protected by theDue Process Clause of the 14th Amendment. However, this liberty is narrowly defined and generally only protects privacy of family, marriage, motherhood, procreation, and child rearing. There have been attempts to further extend the right of privacy under the1st, 4th, and 5th Amendmentsto the U.S. Constitution; however, a general right to personal autonomy has yet to take hold beyond limited circumstances.

The personal autonomy dimension of the right of privacy has been overwhelmingly developed in cases dealing with reproductive rights. The Supreme Court first recognized an independent right of privacy within the 'penumbra' (fringe area) of the Bill of Rights inGriswold v. Connecticut, 381 U.S. 479 (1965). In this case, a right of marital privacy was invoked to void a law prohibiting contraception. Later cases expanded upon this fundamental right, and inRoe v. Wade, 410 U.S. 113 (1973), the right of privacy was firmly established under the Due Process Clause of the14th Amendment. The court classified this right as fundamental, thus requiring any governmental infringement to be justified by a compelling state interest.Roeheld that the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy only after viability. Before viability, it was held, the mother's liberty of personal privacy limits state interference due to the lack of a compelling state interest.

The personal autonomy aspect of the right of privacy has limits. In 1986, a law criminilizing same sex sodomy was upheld inBowers v. Hardwick, 478 U.S. 186 (1986). The Court held that not all private consensual sexual activity is insulated from the state. At the time, the same sex activities in question were not granted inclusion in the due process protected categories of relationships. However,Bowerswas overturned inLawrence v. Texas(2003), holding that theBowerscourt viewed liberty too narrowly and grounding the right with a notion of how personal and intimate nature of the conduct.

As activities become further removed from reproduction and intimacy, the right of privacy weakens and becomes less fundamental. Pornography is an area where the court has been reluctant to completely grant the liberty of personal autonomy, although some privacy has been allowed: seeStanley v. Georgia, 394 U.S. 557 (1969) andParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

The 1st, 4th, and 5th Amendments to the U.S. Constitution have been utilized to varying degrees of success to protect privacy in these gray areas of activity. The court's preference for a case-by-case approach to the right of privacy in as much as it protects personal autonomy, combined with ever-changing public opinion on the status of various relationships and activities, makes a succinct statement about the boundaries of the right of privacy nearly impossible.

Equal Protection: An Overview

The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws.SeeU.S. Const. amend. XIV. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. A violation would occur, for example, if a state prohibited an individual from entering into an employment contract because he or she was a member of a particular race. The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application. By denying states the ability to discriminate, the equal protection clause of the Constitution is crucial to the protection of civil rights.SeeCivil Rights.

Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right. There is no clear rule for deciding when a classification is unconstitutional. The Supreme Court has dictated the application of different tests depending on the type of classification and its effect on fundamental rights. Traditionally, the Court finds a state classification constitutional if it has "a rational basis" to a "legitimate state purpose." The Supreme Court, however, has applied more stringent analysis in certain cases. It will "strictly scrutinize" a distinction when it embodies a "suspect classification." In order for a classification to be subject to strict scrutiny, it must be shown that the state law or its administration is meant to discriminate. Usually, if a purpose to discriminate is found the classification will be strictly scrutinized if it is based on race, national origin, or, in some situations, non U.S. citizenship (the suspect classes). In order for a classification to be found permissible under this test it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest. The Court will also apply a strict scrutiny test if the classification interferes with fundamental rights such as first amendment rights, the right to privacy, or the right to travel. The Supreme Court also requires states to show more than a rational basis (though it does not apply the strictly scrutiny test) for classifications based on gender or a child's status as illegitimate.