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The Fourteenth Amendment to the U. S. Constitution reads:
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."
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
The Fourteenth Amendment, ratified in 1868, has generated more lawsuits than any other provision of the U.S. Constitution. Section 1 of the amendment has been the centerpiece of most of this litigation. It makes "All persons born or naturalized in the United States"citizens of the United States and citizens of the state in which they reside. This section also prohibits state governments from denying persons within their jurisdiction the privileges or immunities of U.S. citizenship, and guarantees to every such person due process and equal protection of the laws. The Supreme Court has ruled that any state law that abridges Freedom of Speech, freedom of religion, the right to trial by jury, the Right to Counsel, the right against Self-Incrimination, the right against unreasonable searches and seizures, or the right against cruel and unusual punishments will be invalidated under section 1 of the Fourteenth Amendment. This holding is called the Incorporation Doctrine.
Sections 2 to 5 have been the subject of far fewer lawsuits. Some of these sections seem anachronistic today because they reflect the immediate concerns of the Union's political leadership following the North's victory over the South in the Civil War (1861–65). Section 2, for example, penalized any state that attempted to abridge the voting rights of its black male residents by reducing the state's representation in Congress (no female resident of any race was afforded the constitutional right to vote in the United States until 1920). Section 3 prohibited from holding state or federal office any person who engaged in "insurrection or rebellion" or otherwise gave "aid or comfort to the enemies" during the Civil War. Section 4 reaffirmed the United States' commitment to pay its Civil War debt, while declaring all debts and obligations incurred by the Confederate government "illegal and void." Section 5 enabled, and continues to enable, Congress to pass "appropriate legislation" to enforce the provisions of the Fourteenth Amendment.
The Fourteenth Amendment was drafted to alleviate several concerns harbored by many U.S. citizens prior to its ratification. The most obvious concern related to the status of the recently freed slaves. Five years before hostilities commenced in the Civil War, the Supreme Court declared that people of African descent living in the United States were not "citizens" of the United States, but merely members of a "subordinate and inferior class of human beings" deserving no constitutional protection whatsoever (dred scott v. sandford, 60 U.S. [19 How.] 393, 15 L. Ed. 691 ). The Fourteenth Amendment vitiated the Supreme Court's holding in Dred Scott by making all blacks "born or naturalized in the United States" full-fledged citizens entitled to the same constitutional rights provided for every other U.S. citizen.
The racist attitudes expressed in Dred Scott also manifested themselves after the Civil War. In 1865, the southern states began enacting the Black Codes, which deprived African Americans of many basic rights afforded to white Americans, including the right to travel, bear arms, own property, make contracts, peaceably assemble, and testify in court. The Black Codes also authorized more severe punishments for African Americans than would be imposed on white persons for committing the same criminal offense. The Fourteenth Amendment offered an antidote to these discriminatory laws by guaranteeing to members of all races "due process of law," which requires the legal system to provide fundamentally fair trial procedures, and "equal protection of the laws," which requires the government to treat all persons with equal concern and respect.
Dred Scott was not the only Supreme Court decision that influenced the framers of the Fourteenth Amendment. Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833), also played a significant role. This case involved a Maryland wharf owner who brought a lawsuit against the city of Baltimore for violating the Fifth Amendment's eminent domain clause, which prohibits the government from taking private property without "just compensation." Baltimore defended against the wharf owner's lawsuit by arguing that the Fifth Amendment only provides relief against action taken by the federal government and offers no protection against state governments or their political subdivisions. The Supreme Court agreed with Baltimore.
Writing for the Court, Chief Justice John Marshall asserted that the Constitution created the federal government, and the provisions of the Constitution were designed to regulate the activity of the federal government. The people of each state enacted their own constitution, Marshall contended, to regulate the activities of their state and local governments. Thus, Marshall reasoned that the U.S. Constitution operates only as a limitation on the powers of the federal government, unless one of its provisions expressly restricts the powers of state governments, as does Article I, Section 10.
Article I, Section 10, provides that "[n]o State shall enter into any Treaty, Alliance, or Confederation," or "pass any Bill of Attainder, ex post facto law, or Law impairing the Obligation of Contracts." This wording, Marshall maintained, demonstrates that the Framers understood the type of clear and unequivocal language that must be used to make a provision of the federal Constitution binding on the states. Because the first eight amendments to the Constitution do not contain language that restricts the powers of state governments, Marshall concluded that the Bill of Rights was inapplicable to the states.
The Supreme Court's decision in Barron weighed heavily on the mind of john bingham, the Republican representative from Ohio who was the primary architect of Section 1 of the Fourteenth Amendment. Bingham said he "noted … certain words in the opinion of Marshall" when he was "reexamining that case of Barron." The chief justice, Bingham stressed, denied the wharf owner's claim because the Framers of the Bill of Rights, unlike the Framers of Article I, Section 10, had not chosen the type of explicit language that would clearly make the Bill of Rights applicable to state governments. "Acting upon" Marshall's "suggestion" in Barron, Bingham said, he "imitated"the Framers of Article I, Section 10:"As [these Framers had written] 'no state shall … pass any Bill of Attainder …' I prepared the provision of the first section of the fourteenth amendment."
Bingham's remarks shed light on the Supreme Court's decision to make most of the provisions contained in the Bill of Rights applicable to state governments through the doctrine of incorporation. Under this doctrine, the Supreme Court has ruled that every protection contained in the Bill of Rights—except for the right to bear arms, the right to indictment by Grand Jury, the right to trial by jury in civil cases, and the right against quartering soldiers—must be protected by state governments under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
The Supreme Court has explained that each of these incorporated rights is "deeply rooted in the nation's history" and "fundamental" to the concept of "ordered liberty" represented by the Due Process Clause (Palko v. Connecticut, 302U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 ). Any state that denies one of these rights is violating its duty to provide the "equal protection of the laws" guaranteed to the residents of every state by the Fourteenth Amendment.
Although a state may provide more constitutional protection to its residents than is conferred by the Bill of Rights, the Fourteenth Amendment prohibits any state from providing less protection. For example, the Supreme Court upheld the constitutionality of sobriety checkpoints, which authorize police officers to stop motor vehicles to determine if the driver has been consuming alcohol, regardless of whether the stop was based on Probable Cause or made pursuant to a Search Warrant as required by the Fourth Amendment (Michigan v. Sitz, 496U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412). The Minnesota Supreme Court reached the opposite conclusion, invalidating arrests made during traffic stops at sobriety checkpoints because they did not comport with the state's constitutional provisions prohibiting unreasonable searches and seizures (Ascher v. Commissioner of Public Safety, 519 N.W.2d 183 [Minn. 1993]).
Whereas the Due Process and Equal Protection Clauses have given rise to a panorama of legal claims such as the sobriety checkpoint cases, the privileges and immunities clause has produced only a few lawsuits since the end of the 1800s. Like most other legal terms in the Bill of Rights, the phrase privileges or immunities is not defined in the Constitution. Nor does the phrase possess a meaning that is self-evident. However, some insight into the meaning of the Privileges and Immunities Clause may be gleaned from statements made by the man who drafted it, Congressman Bingham.
Bingham said the "privileges and immunities of citizens of the United States … are chiefly defined in the first eight amendments to the Constitution of the United States… . These eightarticles … never were limitations upon the power of the states until made so by the Fourteenth Amendment" (quoted in Adamson v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903 [Murphy, J., dissenting]). Senator Jacob Howard echoed these thoughts, stating that "these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—[include] … personal rights … such as the freedom of speech and of the press, [and] the right of the people to peaceably assemble and petition the government for redress of grievances." Similarly, Representative James Wilson made it clear that the "privileges and immunities of the citizens of the United States" include "[f]reedom of religious opinion" and "freedom of speech and press."
Notwithstanding the statements made by these congressmen, the Supreme Court has limited the application of the Fourteenth Amendment's Privileges and Immunities Clause to provide only negligible protection against the state and federal governments. In the Slaughter-House Cases, 83 U.S. (16 Wall.) 16, 21 L. Ed. 268 (1873), a group of New Orleans butchers brought a lawsuit to invalidate a Louisiana law that granted a Monopoly to a local slaughterhouse. The butchers alleged that the state-chartered monopoly violated their "privileges and immunities" to pursue gainful employment free from unlawful restraints.
In an extremely narrow reading of the Fourteenth Amendment, the Supreme Court rejected the butchers' argument. The Court held that the Privileges and Immunities Clause protects only rights derived from U.S. citizenship, such as the right to Habeas Corpus and interstate travel and not rights derived from state law, such as the common-law rights of tort and property asserted by the New Orleans butchers. The Supreme Court has neither overruled its decision in the Slaughter-House cases nor expanded its narrow interpretation of the Privileges and Immunities Clause. Most constitutional scholars have since pronounced this clause a dead letter.
If the Supreme Court has provided a more conservative interpretation of the Privileges and Immunities Clause than envisioned by the Framers of the Fourteenth Amendment, it has provided a more liberal interpretation of the Equal Protection Clause. In brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court ruled that the doctrine of "separate but equal," in which the black and white races were segregated in public schools and other places of public accommodation, was "inherently unequal" and denied African Americans "equal protection of the laws." The ambit of the Equal Protection Clause was later enlarged by the Supreme Court beyond racial Segregation to cover an assortment of gender discrimination claims asserted by women.
The Court made these rulings in spite of evidence that racial segregation was prevalent at the time the Fourteenth Amendment was adopted and that women were treated like second-class citizens during most of the nineteenth century. In 1868, for example, racial segregation of public schools was permitted throughout the South and in eight northern states. The gallery of the U.S. Senate was itself segregated by race during the debate of the Equal Protection Clause. During the first half of the nineteenth century, every state proscribed married women from devising a will, owning or inheriting property, entering into a contract, or exercising almost any other basic civil right afforded to women in the modern United States. Indeed, the Common Law recognized no existence for married women independent from their husbands. By marriage, the Husband and Wife became one person in law, and that person was the husband.
Thus, the Framers' original understanding of the Fourteenth Amendment has not provided a useful yardstick to measure the Supreme Court's interpretation of the Due Process and Equal Protection Clauses. Since the mid-1940s, the Supreme Court has strayed further from the Framers' original understanding, recognizing controversial privacy rights to use contraceptives (griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 ), obtain abortions prior to the third trimester of pregnancy (roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 ), and view obscene pornographic material in the privacy of one's own home (Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 ). In 1996 the Supreme Court held that the Equal Protection Clause had been violated by an amendment to the Colorado constitution prohibiting legislative, judicial, or executive action at the state or local level from protecting homosexual persons from discrimination in romer v. evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996).
The Supreme Court has extended the reach of the Fourteenth Amendment to private actors when they become so entwined with state or local government that they become, in effect, state actors. In Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001), the Court held that a state athletic association was so closely connected with the public schools as to become a state actor. The association sought to curtail the alleged football recruiting abuses of Brentwood Academy, a private school with a very successful football program.
Brentwood Academy sued the association and alleged that it had violated the Fourteenth Amendment. The association was not a part of state government, but the Supreme Court held that the state had delegated authority to regulate school athletic programs to the organization. The Court applied the general principle where there is such a "close nexus between the State and the challenged action," seemingly private behavior "may be fairly treated as that of the State itself."
Amar, Akhil Reed. 1992. "The Bill of Rights and the Fourteenth Amendment." Yale Law Journal 101.
Curtis, Michael Kent. 1993. "The 1859 Crisis over Hinton Helper's Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment." Chicago-Kent Law Review 68.
Curtis, Michael Kent. 1988. Review of No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights in Harvard Law Review 101.
Rierson, Sandra L."Race and Gender Discrimination: A Historical Case for Equal Treatment Under the Fourteenth Amendment." Duke Journal of Gender Law and Policy 1.
Stone, Lawrence. 1977. The Family, Sex, and Marriage in England 1500–1800. Weidenfeld & Nicolson.