Due process. Equal protection. Citizenship.
With such heavy emphasis on democracy’s fundamentals, it’s no wonder the U.S. Constitution’s 14th Amendment — sometimes called the “state powers” amendment — is the one most frequently litigated. Ratified in the immediate aftermath of the Civil War on July 9, 1868, this week marks its 150th anniversary.
The 14th Amendment has five sections; the first contains the heavy hitters, including citizenship, due process, and equal protection under the law. Section Two involves apportionment and is mainly historical; Three and Four limit public officeholders (no insurrectionists) and forgive Confederate debt; and Section Five authorizes legislation to effect the Amendment’s purposes.
Section One draws the most attention, with four clauses addressing fundamental rights:
Citizenship (naturalization) Clause: “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.” This clause was partly a reaction to the Supreme Court’s 1857 decision in Scott v. Sanford that African Americans weren’t citizens, whether slaves or free. “All persons born …” makes it clear no exceptions apply.
Privileges and Immunities Clause: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …” There was some debate about the original intent here; did it mean state laws should be applied equally, or that the state laws must encompass fundamental constitutional rights? Over the years, application of the P&I clause has focused on protecting citizens of one state from being discriminatorily treated by another, such as rights to state benefits not varying for newer vs. longer-term state residents.
Due Process Clause: “(N)or shall any state deprive any person of life, liberty, or property, without due process of law …” The Fifth Amendment also has a due process clause; while they mean the same thing, the 14th’s explicitly applies federal due process concepts to state actions (including law enforcement cases). This doesn’t mean government can’t deprive, only that due process has to be satisfied first. There are two types of due process — procedural and substantive.
In short, procedural due process means the right to notice and a hearing (applied fairly to everyone). Before it gets that far, there must first be a “property” or “liberty” interest at stake. Liberty interest examples include the obvious — freedom from detention, physical restraint, and death, as well as from damage to reputation if it rises to the level of serious harm, such as stigma preventing employment. It also includes the right of the accused to an attorney in state criminal prosecutions.
Property interests go beyond real estate or possessions, including public benefits, government jobs, and wage garnishment. The more important the right, the stricter the government’s procedural due process must be.
Substantive due process focuses more on the rights themselves. Is the law arbitrary or reasonable? Is the law rationally related to a legitimate government interest (the lowest standard applied, e.g., to taxation)? If a more fundamental right is at stake, such as privacy rights in marriage, contraception, and raising children (e.g., home schooling), the court expects more — the government must prove the law is necessary (not merely rationally related) to achieve a “compelling government interest.”
Equal Protection Clause. “(N)or deny to any person within its jurisdiction the equal protection of the laws.” Probably the most litigated section, this guarantees all U.S. citizens equal protection under federal law, forbidding a statute ordinance discriminates against one person or class. Discrimination has been tested on the basis of gender, disability, “illegitimacy,” race, national origin, alienage (immigrants), and religion, including lack of religion. Many of the famous cases affirming, limiting, or striking down laws involved equal protection analyses, such as the right to vote, gerrymandering (defining voting district boundaries on racial, partisan, or other bases affecting election results), affirmative action and quotas, statutory rape, the military draft, racial segregation, and marriage.
The 14th Amendment’s principal author, in fact the one who drafted its most oft-repeated clauses, was John Bingham, a U.S. Representative from Ohio and favorite of President Lincoln, who repeatedly offered him high government offices (most of which Bingham declined). Bingham was passionately against racism, stating in speeches, “You will search in vain in the United States Constitution for the word White, it is not there … the omission of that word — this phrase of caste — from our national charter was not accidental but intentional.”
Moreover, speaking to the Committee on Reconstruction considering the amendment, Bingham made it plain his equal protection language was for all persons, meant as “a simple, strong, plain declaration that equal laws and equal and exact justice shall hereafter be secured within every State of the Union,” guaranteeing “equal protection (for) any person, no matter from whence he comes, or how poor, how weak … no matter how friendless.”
Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.