14th Amendment PDF

The Fourteenth Amendment 1/2 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 cit...

The Fourteenth Amendment 1/2 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. [...] Facts I. A Brief History of the Fourteenth Amendment The Fourteenth Amendment (ratified in 1868 following the Civil War) was proposed by Congress to protect the rights of recently freed slaves (with slavery abolished by the Thirteenth Amendment in 1865), to overturn the Three-Fifths Clause of the Constitution (whereby slave populations were counted as three-fifths of free populations for purposes of Congressional apportionment), to forbid Southern insurrectionists from holding federal office, and to repudiate Southern state debts incurred during the Civil War. The first section of the Fourteenth Amendment (see Section 1 excerpt above) sets out a national citizenship status, based on birth or naturalization in the United States, and contains three clauses that limit the power of state governments from encroaching on the rights of U.S. citizens, such citizens now including the emancipated slave population. The three clauses, described more fully below, are known as: – the Privileges or Immunities Clause – the Due Process Clause – the Equal Protection Clause The Fourteenth Amendment’s recognition of a national citizenship status and its three protective clauses were essentially devised to ensure the rights of recently emancipated slaves. Indeed, it was feared that without a constitutional Amendment justifying federal intervention in state matters and the legal ability of emancipated persons, as newly recognized U.S. citizens, to petition the courts for their own freedom and rights, many Southern states would feel emboldened to reinstate slavery. Hence the Fourteenth Amendment was to become the judicial tool for any emancipated slave, henceforth an American citizen, to file suit against a state if it sought to re-establish slavery. For example, should the state of Georgia attempt to re-establish slavery in violation of the Thirteenth Amendment, the manner in which the suit could be filed against Georgia would be to invoke in court the fact that the state was “depriving” a “citizen” of his “liberty” without “due process of law” guaranteed to him by the Fourteenth Amendment, in light of the fact that Georgia was violating the Thirteenth Amendment. Although effective against a re-establishment of outright slavery, it is worth noting that for almost a century after its ratification, the Fourteenth Amendment was ineffective against continued and state enforced racial segregation and legal subjugation. In that regard, in the case Plessy v. Ferguson (1896), the Supreme Court upheld the “separate but equal” doctrine and declared Jim Crow laws constitutional. It was not until Brown v. Board of Education of Topeka (1954) that this decision was overturned and that the Supreme Court ruled that racial segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment. It would take another ten years for public racial segregation to be abolished and for other fundamental rights to be protected by the passing of the Civil Rights Act (1964). II. Substantive and Procedural Due Process The notion of due process echoes clause 39 of Magna Carta (1215) and implies that the government should act in accordance with a set of rules rather than in an arbitrary manner. The idea is therefore closely connected to concepts such as “natural justice” (which refers to the basic principles of justice and fairness) or the “rule of law” (which is the legal principle by which no branch of power or government official can act above the law, arbitrarily, without conforming to certain universal principles of fairness, morality and justice). The wording of the Due Process Clause of the Fourteenth Amendment (“nor shall any state deprive any person of life, liberty, or property without due process of law”) points to a clear restriction of state government power. However, over the years, the Supreme Court has interpreted the Due Process Clause in a more specific way as providing four judicial tools: the vehicle to incorporate the Bill of Rights (as described above), the protection against vague laws (known as the Vagueness Doctrine), procedural due process rights and finally substantive due process rights. Procedural due process concerns the aspects of due process that apply to civil and criminal proceedings. The protections against government actions could include for instance the right to be represented by counsel, the right to present evidence at trial and to call witnesses or the right to cross-examine witnesses. In fact, the Bill of Rights contains some of the most essential provisions regarding procedural due process. The following units will introduce some of these in more detail. Substantive due process refers to the principle by which the Supreme Court has determined which rights are deemed so fundamental that any attempt by the government to interfere with such rights would face strict scrutiny (which is the most stringent level of judicial scrutiny). To pass strict scrutiny, a law must be justified by a compelling governmental interest, it must be narrowly tailored to achieve its legitimate aim and must be the least restrictive means of achieving such an aim. For instance, in 1967, in the case Loving v. Virginia, the Supreme Court struck down anti-miscegenation laws (which criminalized interracial marriage) because they violated both the right to substantive due process as well as the right to equal protection (race is a “suspect classification” and a law which imposes a severe burden on the exercise of a fundamental right or discriminates on the basis of race must pass strict scrutiny to be upheld under the Equal Protection Clause). Other typical substantive due process cases are those that concern freedom of religion, freedom of speech or the right to bear arms. While procedural due process has been a generally accepted and well-defined concept (the term “due process” suggesting an obvious relation to the establishment of procedural rights), the concept of substantive due process, on the other hand, has been highly controversial, with the Supreme Court deeply divided on the issue, its decisions appearing to hinge on the makeup of the Court. Indeed, until very recently, the majority of the Supreme Court supported the application of substantive due process to establish various Constitutionally protected rights, including, for example, upholding the fundamental right to marry, established in the Loving case, and extending that right, in Obergefell v. Hodges, 2015, to same-sex marriage, striking down same-sex marriage bans across the country as violations of the Fourteenth Amendment's Due Process Clause and Equal Protection Clause. Today, with the recent changes in composition of the Court (that is, the addition of several conservative justices, replacing former liberal justices and thus shifting the Court’s majority), the Court now appears more closely aligned with Justice Clarence Thomas’s criticism of substantive due process and his assertion that “the Fourteenth Amendment's Due Process Clause is not a secret repository of substantive guarantees against unfairness.” In that regard, in its recent decision, Dobbs v. Jackson Women’s Health Organization, 2022, the Court overturned Roe v. Wade, 1973, an almost fifty-year precedent in which the Court had established a (limited) right to abortion, as part of a woman’s fundamental right to privacy, founded upon the concept of substantive due process. As such, it now appears possible that the Court may call into question the viability of other rights established per substantive due process, with Justice Thomas, in his concurring opinion, calling for the Court to review and reconsider all cases establishing Constitutional rights based upon substantive due process. III. Incorporating the Bill of Rights through the Fourteenth Amendment: the Due Process Clause and Selective Incorporation The Bill of Rights, that is, the first ten Amendments to the U.S. Constitution, as originally proposed by Congress and ratified collectively by the states in 1791, applied only to the federal government. During the state ratifying conventions, delegates had called for a bill of rights because they wished to put limitations on the powers of the new federal government, not because they wanted to limit the powers of their respective state governments. Indeed, the only institution referred to by name in the Bill of Rights is the federal Congress. The First Amendment begins with the phrase, “Congress shall make no law.” Clearly, the limitations on power applied only to the federal government, not to the states. Not everyone, however, was satisfied, with this situation. In Barron v. Baltimore (1833), the Supreme Court was called upon for the first time to interpret whether the Bill of Rights could be seen as limiting state powers. Chief Justice John Marshall, a former member of the Federalist Party and opponent of the doctrine of states’ rights, wrote the opinion in the case. The plaintiff in the case wanted the Court to apply the Just Compensation Clause of the Fifth Amendment to the city of Baltimore. The question presented by the case, Marshall said, was of great importance but not of much difficulty. Marshall opined that had the framers of the Bill of Rights intended for these rights to apply to the states, they would have expressed that intention. Thus, he continued, the Supreme Court had no authority to apply the Bill of Rights to the states. The Court’s decision in Barron v. Baltimore remained unchallenged until after the Fourteenth Amendment was added to the Constitution in 1868. Once the Fourteenth Amendment was ratified, the question again arose as to the application of the Bill of Rights to the individual states, with the next debate centered on the question as to whether the Fourteenth Amendment made all- or some, or none- of the protections of the Bill of Rights applicable against the states. This debate became one of the longest-lasting debates involving the interpretation by the Supreme Court of the scope of the Fourteenth Amendment, with the Court eventually concluding, over many years and numerous cases, that most of the protections set out in the Bill of Rights apply to protect citizens against state as well as federal action- that is, they are “incorporated” through the Fourteenth Amendment to apply to states, although it took some time for the Supreme Court to determine how exactly the process of incorporation of rights functioned. The Supreme Court first considered and eliminated the Privileges or Immunities Clause of the Fourteenth Amendment, in the Slaughterhouse Cases (1872), as a potential vehicle for applying the Bill of Rights to the states, before turning to the Due Process Clause of the Fourteenth Amendment in 1925, in the case of Gitlow v. New York. In that case, Benjamin Gitlow, who had been convicted by the state of New York for advocating the overthrow of the government by force, challenged the state statute on the grounds that it violated his First Amendment free speech rights via the state law’s violation of the Fourteenth Amendment’s Due Process Clause. A majority of the Supreme Court accepted the argument that this First Amendment provision applied to state governments, holding that freedom of speech and of the press “are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states.” However, the Court did not explain how it came to interpret the Due Process Clause in this manner, nor did it say what other rights and liberties it thought were fundamental enough to enjoy protection from state infringement, and left these matters to be decided later, as other cases brought different issues to the fore. Not surprisingly, following Gitlow, different Supreme Court justices came to see these issues differently. Some thought the word “liberty” in the Due Process Clause was shorthand for the Bill of Rights. They became advocates of the position known as total incorporation, which held that the Due Process Clause embodied or incorporated the entire Bill of Rights. This meant that the Due Process Clause imposed the same restrictions on state power as the Bill of Rights did on federal power. While total incorporation had the virtue of simplicity, it involved some difficulties as well. For example, it meant imposing on state court systems the requirement to have a trial by jury in civil suits where the amount in dispute exceeded 20 dollars, as set out in the Seventh Amendment. In addition, the doctrine of total incorporation countered the principles established by the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.” For these and other reasons, a majority of Supreme Court justices finally settled on what is known as selective incorporation. With selective incorporation, the Supreme Court decided, on a case-by-case basis, which provisions of the Bill of Rights it would apply to the states through the Due Process Clause. The key case for selective incorporation is Palko v. Connecticut (1937), in which the Court did two things: first, it specifically rejected total incorporation, and then it established the standard to guide the process of selective incorporation. Hence, the Court declared that any right “found to be implicit in the concept of ordered liberty” and “so rooted in the traditions and conscience of our people as to be ranked as fundamental” would be applied to the states. Over the years, the Court has heard a variety of cases through which it has incorporated all of the First, Second, Fourth and Sixth Amendments, most of the Fifth, and potentially all of the Eighth (with some question and debate as to whether its clause on excessive bail has been incorporated), but none of the Third or Seventh Amendments, nor the Ninth or Tenth Amendments, which do not contain any easily incorporated specific individual rights. The Warren Court (1953-1969) is seen as the heyday of selective incorporation. In 1953, President Eisenhower nominated Earl Warren to be Chief Justice of the United States Supreme Court. Warren’s term, which lasted until 1969, was one of the most important in the history of the Court. The Warren Court handed down several landmark cases that almost completely incorporated the first eight Amendments through the Due Process Clause of the Fourteenth Amendment. The Warren Court also affected a revolution in criminal procedure at the state level. The Court expanded the rights of suspects under the Fourth, Fifth, and Sixth Amendments, and applied those rights to the states. Mapp v. Ohio (1961) applied the “exclusionary rule” to the states, preventing illegally obtained evidence from being admitted at trial. In Gideon v. Wainwright (1963), the Court ordered states to provide counsel, at state expense, to indigent defendants in felony cases. This ruling forced states to retry or release thousands of inmates in state custody who had been convicted without the benefit of counsel. Miranda v. Arizona (1966), arguably the most sweeping of the Warren Court decisions, held that the police must notify suspects of their rights before interrogation when in custody. Writing for the Court in Miranda, Warren stated: “At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that [he] has the right to remain silent, that anything said can and will be used against the individual in court, that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, [and] that if he is indigent, a lawyer will be appointed to represent him.” Mapp, Gideon, and Miranda are the most famous of the Warren Court’s cases concerning criminal procedure, but they barely scratch the surface of the Court’s activity in this area. Between 1961 and 1969 the Court incorporated 11 provisions of the Fourth, Fifth, and Sixth Amendments. Benton v. Maryland (1969), decided on the last day of Warren’s tenure on the Court, incorporated the protection against double jeopardy as set out in the Fifth Amendment. Vocabulary 1. an amendment: literally, a change or changes made to a text ; in this context, additions to the United States Constitution, leading to the present-day existence of 27 Amendments. 2. the Bill of Rights: the first ten Amendments to the United States Constitution, initially meant to protect the rights of the states and the people from unwanted federal power and intrusion, some of which were then applied - mostly throughout the 20th century - to state governments through the process of selective incorporation. 3. a concurring opinion: an opinion by one or more judges who reach the same conclusion as the majority of the court but using a different legal reasoning. 4. the Due Process Clause: one of the most important portions of the Fourteenth (and 5th) Amendment(s), this clause sets the foundation for the legal obligation for all states and all levels of American government that they operate within the law (legality) and provide fair procedures. 5. the Equal Protection Clause: another important part of the Fourteenth Amendment, this clause sets the foundation for a constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness. 6. the Fifteenth Amendment: this text granted African American men the right to vote. Although ratified on February 3, 1870, the promise of the 15th Amendment would not be fully realized for almost a century. Through the use of poll taxes, literacy tests and other means, Southern states were able to effectively disenfranchise African Americans. It would take the passage of the Voting Rights Act of 1965 before the majority of African Americans in the South were registered to vote. 7. to file suit: to sue, bring a person/company to court. 8. Jim Crow laws: the name of the racist state and local laws that established racial segregation and that restricted the civil rights of African Americans in the South of the United States. 9. a majority opinion: the main opinion of a court, setting the legal reasoning agreed upon by more than half the judges of the court. 10. the Privileges or Immunities Clause: the first of the three protective clauses found in Section 1 of the Fourteenth Amendment, it mimics the language of the Privileges and Immunities Clause found in Article IV, Section 2 of the Constitution, concerning interstate relations and the protection of the rights of citizens of one state by another state; here, its function was to protect the rights of national citizens, though it was immediately dismissed by the Supreme Court as a vehicle for incorporation of the Bill of Rights (although, more recently, a minority of Supreme Court Justices have indicated their preference for this clause over the Due Process Clause for use in selective incorporation). 11. Procedural Due Process: Principle required by the Constitution that when the state or federal government acts in such a way that deprives a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard. (from www.law.cornell.edu) 12. Selective incorporation: a juridical doctrine whereby selected provisions of the Bill of Rights are made applicable to the states via an interpretation of the Fourteenth Amendment. 13. Substantive Due Process: the notion that due process not only concerns certain legal procedures, but also protects certain rights unrelated to procedure. (from www.law.cornell.edu) 14. Strict scrutiny: a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. (from www.law.cornell.edu) 15. the Three-Fifths Clause: this compromise, achieved during negotiations between Southern and Northern states over the drafting of the United States Constitution, can still be found in Article 1, Section 2, Paragraph 3 (http://constitutionus.com/). It consisted in counting slave populations as three-fifths of free populations for purposes of Congressional representative apportionment. 16. the Thirteenth Amendment: ratified in 1865, this text pronounced in no uncertain terms the end of slavery. "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation".