United States Constitution

In the wake of the Civil War, several amendments to the Constitution were added to remedy some of the societal problems that had led to that war. The cornerstone of these Reconstruction Amendments, as they were called, is arguably this section of the 14th Amendment. It is certainly the most dense. Within a few lines of text, rights and guarantees grow outward like leaves and branches on a tree. It is the giant sequoia of Constitutional Law.By way of introduction, it should be noted that the 14th Amendment as a whole does not apply to private actors. For there to be a violation of the Constitution under any of its provisions, there must be some government actor. For an explanation of the sometimes blurry lines between government and private actors, see Government and Private Action.Turning to this section, it begins by guaranteeing birthright citizenship for all, finally overturning the blight that was the Supreme Court’s decision in Dred Scott v. Sanford (1857), where the Court denied that most basic of promises to African Americans. It continues by requiring states not to interfere with the “privileges or immunities of citizens of the United States.” This clause, while sounding grand in scope, has been interpreted quite narrowly to only provide those few rights held by the Court to be inherent to citizenship of the country as a whole, such as access to ports, protection on the high seas, the ability to run for federal office, and the right to travel. While occasionally, and even recently, this clause is referenced or somewhat revived, it remains relatively hollow. Next, the amendment requires states not to “deprive any person of life, liberty, or property, without due process of law.” This Due Process Clause, as it’s known, is a wellspring of rights. First, and most obviously, it is the source of Procedural Due Process rights. In other words, if a person’s life, liberty, or property is threatened by the government, including by the courts, that person is entitled to some measure of procedural process, including the right to be adequately notified of the charge and the right to have an adequate opportunity to be heard. Second, the Court has interpreted this clause as the source of what’s known as Substantive Due Process. Meaning, though not explicitly mentioned elsewhere in the Constitution, there are some rights so fundamental to our way of life and system of government that they are implied: implied by the Due Process Clause. As an example, the Due Process Clause has been held by the Court to imply a fundamental right to privacy, a corollary of which is a woman’s right to choose as held by the Court in Roe v. Wade (1973). Third, under the rubric of implied fundamental rights, the Court has also used the Due Process Clause, explicitly applicable to the states, to apply many of the rights guaranteed by the Bill of Rights, explicitly applicable only to the federal government, to the states as well. For example, protection of free speech afforded under the First Amendment is applied to the states through the Due Process Clause of the Fourteenth Amendment. Finally, this section ends by requiring states not to “deny to any person within its jurisdiction equal protection of the laws.” This Equal Protection Clause, as it’s known, protects different people from being treated differently by the government. As mentioned, like with the other provisions, it does not apply to private individuals. Your neighbor can be a bigot or a racist. But your government cannot be. As simple as this may sound, however, the Equal Protection Clause is less a bright line rule, and more a tool with which to analyze a spectrum. The Court has understood there to sometimes be a need for the government to treat groups differently. Statutes prohibiting a seven year-old child from running for town counsel or buying beer may be government classifications, but that does not mean the government is guilty of ageism. The Court, therefore, analyzes Equal Protection challenges using a complex system of varying levels of scrutiny, examining both the purpose for a particular government classification as well as the propriety of the action taken to carry out that purpose. Can a public school use race to shape its student body? Can a state-run college limit admission to men? Is the death penalty unconstitutional if it’s disproportionately given to murderers of white victims? Can law enforcement racially profile? These are but a few of the issues the Court has dealt with under the umbrella of the Equal Protection Clause.