Fourteenth Amendment (2024)

Overview

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

Section Two deals with the apportionment of representatives to Congress.
Section Three forbids anyone who participates in “insurrection or rebellion” against the United States from holding federal office.
Section Four addresses federal debt and repudiates debts accrued by the Confederacy.
Section Five expressly authorizes Congress to enforce the Fourteenth Amendment “by appropriate legislation.”

The states ratified the Fourteenth Amendment in 1868 in the immediate aftermath of theAmerican Civil War, along with the other Reconstruction Amendments—theThirteenthandFifteenth.

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

InDred 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 overturnedScott v. Sanford.

Native Americans

InElk 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 theIndian Citizenship Act.

Chinese Americans

InUnited 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 inWong Kimalso 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

TheState Action Clauseof the Fourteenth Amendment declares that a state cannot make or enforce any law that abridges the privileges or immunities of any citizen. In theCivil 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 inUnited 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 theGuestdecision, and inUnited States v. Morrison,529 U.S. 598 (2000), the Supreme Court rejectedGuest,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. InShelley 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 privaterestrictive covenantswas generally valid and enforceable. InBurton 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 inReitman 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. InJackson 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 inFlagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978)that there was no Section One liability for a warehouse-workersselling 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 theEqual Protection Clause,and the substantive functions were taken over by theDue Process Clause. This holding has resulted in a fractured incorporation doctrine.

Due Process Clause

TheFifthand 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 inMalinski 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 processis generally understood to contain two concepts:procedural due processandsubstantive 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 caseBoard 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

Althoughprocedural due processis widely accepted,substantive due processis 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. InLochner 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 inAdkins v. Children’s Hosp., 261 U.S. 525 (1923)by holding that aminimum wagelaw for nurses violated the Due Process Clause. The Court also used substantive due process to protect other fundamental rights, such as inPierce 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. RegardingLochner'sright to contract, two cases went directly against that holding. InNebbia 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 inWest Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), the Supreme Court upheld Washington's state minimum wage law, effectively ending theLochnerera 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 asprivacy rights. InGriswold 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 inRoe v. Wade, 410 U.S. 113 (1973), and permitting private hom*osexual acts inLawrence v. Texas, 539 U.S. 558 (2003). The Supreme Court did establish a limit to the doctrine inWashington 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 overturnedRoev. Wade(see entries onDobbs v. Jackson(2022), right to privacy,andabortionfor further details).The right to abortion no longer falls under the broader right to privacy. Additionally, theDobbsopinion mentioned potentially examiningGriswoldin the future. While it is unclear to what extent that may have on the current right to privacy; it is likely that thecase lawaround 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 astatuteorordinancediscriminatesagainst an individual or aclassof individuals, and those individuals sue, the court will apply one of three levels of scrutiny to the law in question:

Rational Basis
- This is the lowest level of scrutiny imposed
Intermediate Scrutiny
- This is an intermediate level of scrutiny imposed (typically used for laws which discriminate on the basis of gender, disability, orillegitimacy)
Strict Scrutiny
- This is the highest level of scrutiny imposed (typically used for laws which discriminate on the basis of race, national origin, alienage, or religion, as well as for laws which infringe onfundamental rights)

For a full in-depth analysis of equal protection, see the LII'sEqual ProtectionWex page.

Apportionment

Section Two of the Fourteenth Amendment deals with apportionment of representatives from the southern states. The abolition of slavery meant that the representation of the former slave in the House of Representatives increased. This clause of the Fourteenth Amendment was drafted to encourage Southern states to grant Black peoplethe right to vote without forcing them to do so. Congress did not really try to enforce the clause. InSaunders v. Wilkins,152 F.2d 235 (4th Cir. 1945), a candidate for Congress from Virginia sued under Section Two of the Fourteenth Amendment, trying to force the state to adopt an at-large electoral system because the state was not eligible for the nine electoral seats it had been granted after the 1940 census. The Court dismissed the case as apolitical question. This section is still in operation and would operate in future cases of rebellion. The Supreme Court affirmed inRichardson v. Ramirez, 418 U.S. 24 (1974)that under Section Two, states can prohibit convicted felons from voting after they have served their prison sentence. Taking away the right to vote is referred to as "disenfranchisem*nt " and you can read more about it in the Wex article titled "Civil Rights."

Disqualification for Rebellion

Section Three of the Fourteenth Amendment disqualifies an individual from serving as a state or federal official if that person has "engaged in insurrection or rebellion against" the United States. Although the clause was written in the context of the Civil War, it would theoretically still apply for members of future rebellions or insurrections against the United States.

Debt

The fourth section of the Fourteenth Amendment involved making the national debt sacrosanct and repudiating Confederate debt. InBranch v. Haas(1883), a federal court decided thatcontractsinvolving Confederatedebtwould not be enforced, although contracts that involve Confederate currency are enforceable to prevent injustice to those who were required to accept them during the Civil War. The issue of the repudiation of the United States’ debt came up again in theGold Clause Cases(1935). In those cases, the Supreme Court held that Congress exceeded its authority by refusing to pay bonds in gold, but that the debt holders could not recover because thedamagewas only nominal.

Enforcement Clause

Section Five of the Fourteenth Amendment is also known as the Enforcement Clause. This Clause grants Congress the power to pass laws that make Sections One through Four of the Fourteenth Amendment effective.

Scope

One of the limitations on the Enforcement Clause is that Congress is only permitted to enforce the provision through appropriate legislation. InKatzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme Court’sholdingsuggested that Congress could define the substantive scope of the Fourteenth Amendment. However, the Supreme Court rejected this suggestion inCity of Boerne v. Flores, 521 U.S. 507 (1997).

Enforcement Against PrivateParties

In theCivil Rights Cases(1883), the Court ruled that Congress did not have the power to legislate against discrimination by private individuals, because Section One of the Fourteenth Amendment only applied to actions committed by a state or state agents. However, if the private party discriminates while engaging in public action (such as a private university which accepts federal funding), then that party would be subject to the Fourteenth Amendment.