Fourteenth Amendment

Overview of the Fourteenth Amendment

The Fourteenth Amendment, ratified in 1868 following the Civil War, is one of the most consequential amendments to the United States Constitution. It established birthright citizenship, prohibited states from abridging the privileges or immunities of citizens, guaranteed due process and equal protection of the laws, and addressed representation and insurrection. Section 1 contains the amendment’s most litigated provisions: the Citizenship Clause, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause.

The Fourteenth Amendment was enacted as one of the Reconstruction Amendments, along with the Thirteenth Amendment (abolishing slavery) and the Fifteenth Amendment (prohibiting racial voting discrimination). It was intended to protect the civil rights of newly freed African Americans and to establish federal enforcement of fundamental rights against state infringement.

Citizenship Clause

The Citizenship Clause declares that all persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and of the state wherein they reside. This clause overturned the Supreme Court’s decision in Dred Scott v. Sandford (1857), which had held that African Americans could not be citizens. It remains the foundation of birthright citizenship in American law.

The phrase “subject to the jurisdiction thereof” excludes children of foreign diplomats and enemy aliens during wartime. The clause has been interpreted to grant citizenship to children born in the United States regardless of their parents’ immigration status (United States v. Wong Kim Ark, 1898), though this interpretation has been debated in modern immigration policy discussions.

Due Process Clause

The Due Process Clause prohibits states from depriving any person of life, liberty, or property without due process of law. This clause has two main components.

Procedural due process requires fair procedures before the government deprives a person of protected interests. The Mathews v. Eldridge (1976) test balances the private interest at stake, the risk of erroneous deprivation under current procedures, and the government’s interest, including administrative burdens. Procedural due process typically requires notice, an opportunity to be heard, and a neutral decisionmaker.

Substantive due process protects fundamental rights from government interference, even when fair procedures are provided. The Supreme Court has recognized fundamental rights including the right to marry (Loving v. Virginia, 1967), the right to use contraception (Griswold v. Connecticut, 1965), the right to abortion (Roe v. Wade, 1973; overruled by Dobbs v. Jackson Women’s Health Organization, 2022), the right to same-sex marriage (Obergefell v. Hodges, 2015), the right to family relationships, and the right to refuse medical treatment. The Court determines whether a right is fundamental by examining whether it is deeply rooted in American history and tradition and implicit in the concept of ordered liberty.

Substantive due process has been highly controversial. Critics argue it invites judicial activism by allowing courts to protect rights not explicitly mentioned in the Constitution. Supporters contend it is essential to protecting individual liberty from majoritarian overreach. The Dobbs decision (2022) signaled a potential narrowing of substantive due process, applying a history-and-tradition analysis and rejecting the right to abortion as not deeply rooted in American history.

Equal Protection Clause

The Equal Protection Clause requires states to treat similarly situated individuals alike. Courts apply different levels of scrutiny depending on the classification at issue.

Strict scrutiny applies to classifications based on race, national origin, and fundamental rights. The law must be narrowly tailored to serve a compelling government interest. Strict scrutiny is often described as “strict in theory, fatal in fact,” though the government occasionally satisfies it, as in affirmative action cases (Grutter v. Bollinger, 2003).

Intermediate scrutiny applies to classifications based on gender and illegitimacy. The law must be substantially related to an important government interest. The Court applied intermediate scrutiny to gender classifications in Craig v. Boren (1976) and United States v. Virginia (1996), requiring an “exceedingly persuasive justification” for gender-based distinctions.

Rational basis review applies to all other classifications, including age, disability, and economic regulations. The law need only be rationally related to a legitimate government interest. This deferential standard virtually always results in the law being upheld.

Brown v. Board of Education (1954) held that racial segregation in public schools violated the Equal Protection Clause, rejecting the “separate but equal” doctrine from Plessy v. Ferguson (1896). The clause has been applied to prohibit discrimination in voting (Shelby County v. Holder, 2013), housing, employment, jury selection (Batson v. Kentucky, 1986), and public accommodations. The Court has also held that intentional discrimination, not merely disparate impact, is required for Equal Protection violations (Washington v. Davis, 1976).

Incorporation Doctrine

The incorporation doctrine applies most provisions of the Bill of Rights to the states through the Fourteenth Amendment’s Due Process Clause. The Supreme Court has selectively incorporated rights on a case-by-case basis, determining whether a right is fundamental and deeply rooted in American history and tradition. Nearly all provisions of the Bill of Rights have been incorporated, including First Amendment freedoms (Gitlow v. New York, 1925), the Fourth Amendment exclusionary rule (Mapp v. Ohio, 1961), the Fifth Amendment right against self-incrimination (Malloy v. Hogan, 1964), and the Sixth Amendment right to counsel (Gideon v. Wainwright, 1963).

Provisions not incorporated include the Third Amendment right against quartering soldiers, the Fifth Amendment grand jury requirement, the Seventh Amendment civil jury right, and the Eighth Amendment prohibition on excessive fines (though this remains an open question after Timbs v. Indiana, 2019).

Privileges or Immunities Clause

The Privileges or Immunities Clause prohibits states from abridging the privileges or immunities of United States citizens. In the Slaughter-House Cases (1873), the Supreme Court narrowly interpreted this clause, limiting it to rights of national citizenship such as the right to travel, the right to use navigable waterways, and the right to petition Congress. This interpretation left the clause largely dormant, though recent scholarship and dissenting opinions have suggested potential revival. Justice Thomas has advocated for interpreting the Privileges or Immunities Clause as the primary source of fundamental rights protection.

Section 5 Enforcement

Section 5 grants Congress the power to enforce the Fourteenth Amendment through appropriate legislation. Congress has used this power to enact landmark civil rights laws, including the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The Supreme Court has limited Section 5 power in cases such as City of Boerne v. Flores (1997), requiring congruence and proportionality between the law and the constitutional violation. The Court invalidated parts of the Violence Against Women Act in United States v. Morrison (2000) and portions of the Voting Rights Act in Shelby County v. Holder (2013) on Section 5 grounds.