Fourteenth Amendment

The Fourteenth Amendment of the U.S. Constitution contains a number of important concepts, most famously state action, privileges or immunities, citizenship, due process, and equal protection—all of which are contained in Section One. However, the Fourteenth Amendment contains four other sections.

The states ratified the Fourteenth Amendment in 1868 in the immediate aftermath of the American Civil War, along with the other Reconstruction Amendments—the Thirteenth and Fifteenth.

Citizenship

Also known as the Naturalization Clause, the Citizenship Clause is contained in Section One of the Fourteenth Amendment. The clause conferred U.S. and state citizenship at birth to all individuals born in the United States.

African Americans

In Dred Scott v. Sanford, 60 U.S. 393 (1857), the Supreme Court held that African Americans were not U.S. citizens, even if they were free.

The Fourteenth Amendment, however, guaranteed that everyone born or naturalized in the United States and under its jurisdiction would be a United States citizen. It also ensured that federal citizenship was also made primary, which meant that states could not prevent freed slaves from obtaining state citizenship and thus federal citizenship. As such, the Fourteenth Amendment effectively overturned Scott v. Sanford.

Native Americans

In Elk v. Wilkins, 112 U.S. 94 (1884), the Supreme Court held that children born to members of Native American tribes governed by local tribal governments were not automatically granted citizenship under the Fourteenth Amendment. Congress, however, granted citizenship to Native Americans in 1924 when it passed the Indian Citizenship Act.

Chinese Americans

In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court held that when a child is born in America to non-citizen Chinese parents, that child is a United States citizen. The Court in Wong Kim also applied that ruling "[a]ll persons born or naturalized in the United States," finding that those persons "are citizens of the United States and of the State wherein they reside."

State Action

The State Action Clause of the Fourteenth Amendment declares that a state cannot make or enforce any law that abridges the privileges or immunities of any citizen. In the Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court ruled that the Civil Rights Act of 1875, which prohibited racial discrimination in public accommodations, was unconstitutional because it tried to regulate private actors. The Court decided in United States v. Guest, 383 U.S. 745 (1966) that the Enforcement Clause gave Congress the power to regulate the private of individuals who conspired with state officials to deprive people of their rights under Section One of the Fourteenth Amendment. In later cases, the Courts tried to distance itself from the Guest decision, and in United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court rejected Guest, and struck down part of the Violence Against Women Act that provided a civil remedy for victims of sex-related violence.

The Court also handled a number of cases dealing with racial discrimination by private actors. In Shelley v. Kraemer, 334 U.S. 1 (1948), the Supreme Court decided that the judicial enforcement of a private restrictive covenant that prohibited non-white occupants violated equal protection to a Black buyer, even though enforcing private restrictive covenants was generally valid and enforceable. In Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), a restaurant which leased space in a public parking garage was found to engage in racially discriminatory practices. The Supreme Court, influenced by the fact that the garage was used for public parking, ruled that the restaurant was closely tied to the state in such a way that the discrimination could be considered state action. As such, the Supreme Court decided that the restaurant's discrimination unconstitutionally violated the Equal Protection Clause. The Supreme Court in Reitman v. Mulkey, 387 U.S. 369 (1967) struck down a California constitutional amendment that prohibited enacting any law that restricted an individual from refusing to sell land to a buyer for any reason. The Court’s argument seemed to be that the amendment to the state constitution was a state action violating equal protection.

In a number of cases, the Court has continued to limit state action claims against private individuals. In Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), the Supreme Court ruled that Section One of the Fourteenth Amendment does not apply when electric utilities stop service to customers. The Court also determined in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978) that there was no Section One liability for a warehouse-workers selling stored property to make good back payments.

Privileges or Immunities Clause

There has been some debate over the meaning of the Privileges or Immunities Clause, with several possible original meanings. A question arose as to whether the clause meant that all state laws should be applied equally to its citizens or that state laws should have certain substantive content. The substantive view can be further divided into two categories. One view is that these privileges and immunities include all of the rights in the Constitution, including the Bill of Rights. Thus, this view sees the purpose of the Privileges or Immunities Clause as applying all of the rights in the Constitution against all of the states. Another view is that it only meant to make the Bill of Rights applicable to the states.

In the Slaughter-House Cases, 83 U.S. 36 (1873), the Supreme Court took an entirely different view. The Court contrasted the Privileges or Immunities Clause with Article IV’s Privileges and Immunities Clause. The Court distinguished the two provisions, claiming that the Privileges or Immunities Clause “speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states.” The Court said such rights included the right to petition Congress, the right to vote in federal elections, the right to enter federal lands, the right to engage in interstate commerce, and several others. On this reading, the Privileges or Immunities Clause in effect does nothing. Neither the Bill of Rights nor fundamental natural rights were included, and thus the apparent equality function of the Privileges or Immunities Clause was taken over by the Equal Protection Clause, and the substantive functions were taken over by the Due Process Clause. This holding has resulted in a fractured incorporation doctrine.

Due Process Clause

The Fifth and Fourteenth Amendments both contain a Due Process Clause, although the Fourteenth Amendment applies explicitly to the states. The Supreme Court has interpreted the Due Process Clauses in both articles as having the same meaning, as Justice Frankfurter describes in his concurrence in Malinski v. New York, 324 U.S. 401 (1945): "To suppose that "due process of law" meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection."

Due process is generally understood to contain two concepts: procedural due process and substantive due process.

Procedural Due Process

Procedural due process guarantees fairness to all individuals. This fairness might require different elements to the accused, including the opportunity to be heard, given notice, and be given a judicial decision with a stated rationale. As a basic rule, the more important the right, the stricter the procedural process must be. The Supreme Court has defined what property and liberty interests are in different cases. In the case Board of Regents v. Roth, 408 U.S. 564 (1972), the Court held, "The Fourteenth Amendment does not require opportunity for a hearing prior to the nonrenewal of a nontenured state teacher's contract unless he can show that the nonrenewal deprived him of an interest in 'liberty' or that he had a 'property' interest in continued employment, despite the lack of tenure or a formal contract."

Substantive Due Process

Although procedural due process is widely accepted, substantive due process is a bit more controversial. Modern debate regarding the substantive due process clause tends to focus on certain liberties which the Supreme Court has interpreted as belonging to citizens, with a large focus on economic liberties, such as the right to create private contracts.

Economic Rights

Starting in the late 1800s, the Supreme Court used substantive due process to uphold a number of economic rights. In Lochner v. New York, 198 U.S. 45 (1905), the Supreme Court held that the Fourteenth Amendment protects a general right to make private contracts, and that a state may not interfere with this liberty in the name of protecting the health of the worker. The Supreme Court continued with the liberty-of-contract doctrine in Adkins v. Children’s Hosp., 261 U.S. 525 (1923) by holding that a minimum wage law for nurses violated the Due Process Clause. The Court also used substantive due process to protect other fundamental rights, such as in Pierce v. Society of Sisters, 268 U.S. 510 (1925) when the Court held that parents have the right to refuse to send their children to public school .

After the New Deal and the Constitutional Revolution of 1937 when the Court started to defer more frequently to Congress on issues of economic legislation, the Supreme Court's interpretation of the Due Process Clause changed. Regarding Lochner's right to contract, two cases went directly against that holding. In Nebbia v. New York, 291 U.S. 502 (1934), the Supreme Court held that the state legislature may regulate prices of items, notwithstanding a right to private contract. And in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), the Supreme Court upheld Washington's state minimum wage law, effectively ending the Lochner era ideals of the right to private contract superseding a legislature's economic regulatory abilities.

Privacy Rights

The Supreme Court has historically used substantive due process to endorse other rights, such as privacy rights. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court endorsed a right to privacy, partially relying on substantive due process. The Court relied upon the right to privacy in several other cases involving individual liberties, such as permitting abortions in Roe v. Wade, 410 U.S. 113 (1973), and permitting private homosexual acts in Lawrence v. Texas, 539 U.S. 558 (2003). The Supreme Court did establish a limit to the doctrine in Washington v. Glucksberg, 521 U.S. 702 (1997), when it ruled that assisted suicide was not a liberty upheld under substantive due process; and in 2022, the Supreme Court overturned Roe v. Wade (see entries on Dobbs v. Jackson (2022), right to privacy, and abortion for further details). The right to abortion no longer falls under the broader right to privacy. Additionally, the Dobbs opinion mentioned potentially examining Griswold in the future. While it is unclear to what extent that may have on the current right to privacy; it is likely that the case law around this right will continue to evolve with more recent Supreme Court decisions.

Equal Protection

The Equal Protection clause of the Fourteenth Amendment is one of the most litigated sections of the Constitution. As a brief overview, the clause refers to the fact that all citizens of the United States are guaranteed equal protection under the laws of the United States.

When a statute or ordinance discriminates against an individual or a class of individuals, and those individuals sue, the court will apply one of three levels of scrutiny to the law in question: