Fourteenth Amendment

Overview

The Fourteenth Amendment contains a number of important concepts, most famously state action, privileges & immunities, citizenship, due process, and equal 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 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 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 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 Sanford v. Scott.

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 reisde."

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-Caucasian 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 warehouseman selling stored property to make good back payments.

Privileges and Immunities Clause

There has been some debate over the meaning of the Privileges and Immunities Clause with several possible original meanings. A question arises 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 and Immunities Clause as applying all of the rights in the Constitution to all of the states. Another view is that it only meant to make the Bill of Rights applicable to the states.

In Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3,230)(C.C.E.D.Pa., 1823), an early case concerning the Privileges and Immunities Clause, found that the Clause protects certain fundamental rights of all citizens. However, in Slaughter-House Cases, 83 U.S. 36 (1873), the Supreme Court rejected that interpretation, holding that the privileges of national citizenship were substantive, but they came about as a result of the federal government, the Constitution, or other laws. The fundamental natural rights were not included, and thus the equality function of the  Privileges and Immunities Clause was taken over by the Equal Protection Clause and the substantive functions were taken by the Due Process Clause. Aside from one case that was later overruled, the Supreme Court did not use the Privileges and Immunities Clause as the basis for decisions until 1999 with Saenz v. Roe, 526 U.S. 489 (1999), where California set welfare benefits for new residents at a certain level equal to what their former state provided for the first year of residency in California. The Court decided that part of the fundamental right to interstate travel was for new citizens of a state to be treated like other citizens of the state.

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 a 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 also 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.

Equal Protection

The Equal Protection clause of the Fourteenth Amendment is one of the most litigated sections of the Constitution. For a full in-depth analysis of equal protection, see the Equal Protection page of the Legal Information Institute.

Most issues are only subject to rational review. In Railway Express v. New York (1949), the Supreme Court upheld a New York City ordinance that prohibited advertising on commercial vehicles unless that advertising pertained to the owner’s business. Although the ordinance was underinclusive because it only applied to some vehicles, it passed the rational review test. Kotch v. Bd. of River Port Pilot Commissioners (1947) was another case where the Supreme Court upheld a law that in effect prevented anyone except a relative or friend of current riverboat pilots from entering the profession. In some cases, despite the deference given by the rational basis test, laws are still struck down. For instance, in Plyler v. Doe (1982), the Supreme Court struck down the Texas law that denied children of illegal immigrants a public school education. Cleburne v. Cleburne Living Center (1985) involved a challenge to a zoning decision that denied a permit to build a home for the mentally challenged, and the Court struck this down as well due to the substantial harm to the plaintiffs and weak state interest.

The middle tier of review was developed during the 1970s for gender and legitimacy of children. In the early 1900s, the Court saw itself as a protector of women while restricting them from various activities. Goesaert v. Cleary (1948) upheld a state law that did not allow a woman to be a bartender except at a business owned by her husband or father while the Court upheld an automatic exemption for women from jury duty in Hoyt v. Florida (1961) with the justification that women are the center of the family. It was not until 1971 in Reed v. Reed that the Court overturned sex classification legislation when they struck down a state law naming a male heir as the administrator of an estate when none was named in a will finding the state had no rational basis for the law. The Supreme Court went from a rational basis analysis to some of the judges applying strict scrutiny in Frontiero v. Richardson (1973) and striking down a law that required female military members to prove their spouses were dependents without requiring male members to do the same. The Court finally settled on an intermediate scrutiny standard in Craig v. Boren (1976) where they struck down a state law that banned 18 to 20 year-old men from buying alcohol while not applying the same restriction to women. The cases that the Supreme Court has decided regarding gender demonstrate that state’s interest needs to have an “exceedingly persuasive justification.”

In the 1980s, the Supreme Court started looking at separation of genders in education instead of racial segregation in public schools. The Court’s ruling in Mississippi University of Women v. Hogan (1982) determined that Mississippi’s policy of only allowing females to enroll in the nursing program violated equal protection because women were not disadvantaged when it came to getting nursing jobs. The Supreme Court decided in United States v. Virginia (1996) that Virginia violated the Equal Protection Clause by denying women entry to the Virginia Military Institute while also deciding that a similar program for women was not substantially equal. 

Cases that involve suspect classifications are subject to closer scrutiny. The Supreme Court laid out the rationale for this level of scrutiny in a footnote of the case Carolene Products v. United States (1938). Usually, strict scrutiny results in the invalidation of the legislation. In Loving v. Virginia (1967), the Court struck down Virginia’s miscegenation law under strict scrutiny. Korematsu v. United States (1944) in which the Court upheld a military exclusion order against Japanese-Americans during World War II was one of the few cases where legislation passed the strict scrutiny test.

Race was not always given stricter scrutiny though as seen in segregation cases. In Plessy v. Ferguson, a case involving a Louisiana law that required the segregation of train cars for blacks and whites, the Supreme Court upheld the law. The NAACP started to attack the separate but equal doctrine established by Plessy starting in the 1930s. The Court agreed with the NAACP’s argument that Missouri’s refusal to provide legal education to black students in the state and instead paying to send them to schools in other states denied them equal protection in Missouri ex rel. Gaines v. Canada (1938). The Court decided the landmark case Brown v. Board of Education of Topeka in 1954 ruling that racially separated schools are inherently unequal. In Brown II, which was decided in 1955, the Supreme Court outlined a plan for the desegregation of schools, but schools dragged their feet despite the ruling, and a decade later a fraction of the schools were integrated. In Griffin v. School Board of Prince Edward Cape (1964), the Court ruled that it violated the Equal Protection clause for a school to close down to prevent from having to integrate.

Sometimes, statutes are neutral on their face, but it is alleged they are applied in a racially discriminatory manner. This is a much harder analysis than the traditional strict scrutiny case. The first case of this type that the Supreme Court heard was Yick Wo v. Hopkins (1886), which involved a Chinese-American challenging the San Francisco Board of Operator’s decision not to give him a license. Yick Wo claimed discrimination pointing out that the Board gave licenses to 79 out of 80 non-Chinese applicants but denied 199 out of 200 Chinese applicants. Due to the evidence, the Court accepted that this was a prima facie case of discrimination.

As noted, alienage is sometimes a protected class. The Equal Protection Clause does not distinguish between the citizens and non-citizens, which brings up the questions of what level of judicial scrutiny should be used when laws are passed treating the citizens and non-citizens differently. In Graham v. Richardson (1971), the Supreme Court, using a strict scrutiny analysis, struck down a law that made citizenship a condition of paying state welfare. The Court did not find that preserving limited state resources for its citizens was a strong enough justification. Application of Griffiths (1973), the Supreme Court used strict analysis and struck down a law that restricted state bar membership to citizens.

Although strict scrutiny was used in these earlier cases, the Supreme Court carved out an exception to the rule of treating alienage classification as requiring strict scrutiny. Starting in the late 1970s, the Court decided the rational basis test should be applied when the classification involves the operation of the state as a government entity. The Supreme Court used the rational basis to uphold state laws that prohibited non-citizens from becoming police officers and parole officers. In Ambach v. Norwick (1978), the Court upheld a law that required school teachers to be citizens because of their role in instilling American values in children and their governmental role. The Court did establish a limit to this exception in Bernal v. Fainter (1984) where they overturned a state law that required notary publics to be citizens.

There is also a different standard of scrutiny applied by the Court to classifications made by the federal government. In Matthews v. Diaz (1976), a less strict standard was applied when the Court upheld a law that required non-citizens to reside in the country for five continuous years before they would be eligible for federal medical insurance.

In Washington v. Davis (1976), Davis challenged the city’s practice of making police force applicants pass a verbal skills test. Due to their better performance, whites comprised 60% of those who passed the test even though they were only 40% of the applicants. The Court decided that unless there was proof that the city used the test because they wanted to discriminate against black applicants then they only needed to show they had a rational basis for using the test. The Supreme Court set out a standard that plaintiffs have to meet to prove a discriminatory purpose in Arlington Heights v. MHDC (1977). Arlington Heights says that to establish a prima facie case of an equal protection violation, the plaintiff has to show that discrimination was a motivating factor in the decision, which can be done with legislative history, departure from usual procedures, or legislative history. After this has been shown, the burden shifts to the city to demonstrate that they would have reached the same result without the discriminatory motive. The case Batson v. Kentucky (1986) established that excluding a potential juror due to race is an Equal Protection violation, but this can be difficult to prove in practice

The flip side of the issue of classifications based on race is the question of whether the government can constitutionally do so to benefit minorities that were previously discriminated against. The first case that came before the Supreme Court was Bakke v. Regents Univ. of California (1978) where a white applicant claimed that he was denied admission to medical school even though his scores were significantly better than minority applicants. Although the Court ruled for Bakke because the school had a two-track admission system, Powell’s concurring opinion indicated that racial diversity in higher education was a compelling state interest. The Supreme Court heard a challenge to the University of Michigan’s admission practice, which automatically awarded points to underrepresented minorities, in Gratz v. Bollinger (2003) and ruled that it was unconstitutional because of the overly automatic system. The same year, the Court also decided a case regarding the University of Michigan law school, Grutter v. Bollinger, ruling that universities could use race as a component in determining admissions, although it narrowly upheld the university’s policy. The Supreme Court decided two cases in 2007, Meredith v. Jefferson County and Parents Involved v. Seattle Schools, where it struck down programs that took into account the race of students when assigning them to schools in order to create racially balanced student bodies.

The Supreme Court revisited the issue again in Fisher v. University of Texas (2013) when it reviewed a challenge to the university using race as part of a two-pronged admission process. The first prong was race blind and automatically admitted the top 10% of Texas high school classes.  The Court took a firmer stance ruling that the lower courts erred in not applying strict scrutiny to the university’s policy. After the Supreme Court struck down the University of Michigan’s admission policy in Grutter, the state’s voters passed a constitutional amendment that prohibited racial preferences in school admissions. The constitutional amendment was challenged in Schuette v. Coalition to Defend Affirmative Action (2014) as groups argued that using a constitutional amendment instead of allowing the issue to be more easily reversed in state legislature was a violation of Equal Protection. The Court’s decision affirmed the right of state voters to decide whether they want to extend racial preferences in admissions.

In addition to education cases, the Court also heard cases involving set-aside programs where government money was put aside for minority contractors when it came to government building projects. In Richmond v. J.R. Croson (1989), the Supreme Court made it clear that such government set-asides are only acceptable to address past racial discrimination if it was the government entity implementing the set-aside that committed the discrimination.

Classifications based on wealth have only been granted a rational basis review. Generally, the government just needs to show that the law is rationally related to serving a legitimate state interest. However, a higher level of scrutiny might be used if the government has placed a financial burden on individuals trying to exercise their fundamental rights.  In Harper v. State Board of Elections (1966), the Supreme Court struck down state laws that impose poll taxes on voters. Other state laws that were struck down include legislation imposing large fees for getting one’s name listed on a public office ballot in Bullock v. Carter (1972) and a filing fee for individuals trying to get a divorce in Boddie v. Connecticut (1971).

 Furthermore, the Court also struck down a fee for parents who are looking for judicial review of a decision terminating parental rights in M.L.B. v. S.L.J.  (1996). In M.L.B., the Supreme Court determined that the savings to the state was not enough to justify the burden it imposed on individuals who are facing losing their parental rights. In Griffin v. Illinois (1956), the Court decided that states must provide free court transcripts to indigents and to provide free lawyers to indigents who are appealing criminal convictions in Douglas v. California (1963). Additionally, the Court ruled in 1985 in the case Ake v. Oklahoma that free psychiatric assistance has to be provided to indigent defendants when significant evidence of mental illness is available that could assist in his defense.

The right to vote is another fundamental right, which the Court has chosen to apply strict scrutiny, although in practice it is not as stringent as the standard applied in suspect classification cases. Reynolds v. Sims (1964) involved a challenge to Alabama’s misapportionment scheme. The state’s program gave rural voters more representatives per capita than it gave urban voters, which the Court ruled violated the Equal Protection Clause. In Harper v. Virginia Board of Election (1966), the Supreme Court struck down a state tax that required voters to pay a small amount to vote in state elections. Strict scrutiny was also used in Kramer v. Union Free School District (1969) to invalidate a state voting restriction that only allowed persons who owned or leased property in a school district or had children who attended school in that district to vote in school board elections. The Supreme Court decided the controversial case Bush v. Gore in 2000, ending the recount of votes in Florida, although most of the judges agreed that there was a problem with Florida’s use of different counting polices in various counties. In 2008, The Court upheld in Crawford v. Marion County Election Board a strict voter identification law that  required voters to present a passport, driver’s license, or state-issued photo identification card.

Although the Court has used the Equal Protection Clause to strike down laws relating to voting and access to justice, they have refused to extend it to provide a certain level of welfare, housing, or education to all citizens. The Court refused to strike down Maryland’s method of calculating welfare benefits to large families in Dandrige v. Williams (1970) despite arguments that it violated the Equal Protection Clause. The Supreme Court in San Antonio v. Rodriquez (1973) ruled that Texas’s method of funding public schools through property taxes did not violate the Equal Protection Clause even though this resulted in more money being spent per pupil in richer school districts. The decision in Rodriquez demonstrated the Court’s intention that the Equal Protection Clause would be confined to rights implicitly or explicitly guaranteed in the Constitution. The Court’s decision along this line can be seen in Kadrmas v. Dickinson Public Schools (1988) where it determined that a school district charging parents part of the cost for transportation by bus to the public school was not a violation of equal protection of the laws.

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 blacks the right to vote without forcing them to do so.  Congress did not really try to enforce the clause. In Saunders v. Wilkins (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 according to the poll tax. The Court dismissed the case as a political question. This section is still in operation and would operate in future cases of rebellion. The Supreme Court affirmed in Richardson v. Ramirez (1974) that under Section Two, states can prohibit convicted felons from voting after serving their prison sentence.

Disqualification for Rebellion  

One of the most controversial sections of the Fourteenth Amendment was Section Three, which disqualified the former rebels from serving as state or federal officials. Some saw it as vindictive action against these individuals. The clause was also tempered from the initial wording. Although the clause was written in the context of the Civil War, it would still apply for future rebellions.

Debt

The fourth section of the Fourteenth Amendment involved making the national debt sacrosanct and repudiating Confederate debt. In Branch v. Haas (1883), federal courts decided that contracts involving Confederate debt would 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 the Gold Clause Cases (1935). In those cases, the Supreme Court ruled that Congress exceeded its authority by refusing to pay bonds in gold, but they could not recover because the damage was only nominal.

Enforcement Clause

The Enforcement Clause grants Congress the power to pass laws that make Sections One through Four of the Fourteenth Amendment effective. One of the limitations on the Enforcement Clause is that Congress is only permitted to enforce the provision through appropriate legislation. In Katzenbach v. Morgan (1966), the Supreme Court’s ruling suggested that Congress could define the substantive scope of the Fourteenth Amendment, but this reading has been rejected by more recent opinions. In the Civil Rights Cases (1883), the Court ruled that Congress did not have the power to legislative against discrimination by private individuals because Section One of the Fourteenth Amendment only applied to actions committed by a state or state agents. Congress is allowed to pass legislation prohibiting state actions that generally violate the Fourteenth Amendment even if they do not always. In Oregon v. Mitchell (1970), there was a challenge to Congress banning literacy tests for voting. The ban was upheld by the Court because they determined that literacy tests tended to be abused so often that they should be completely banned. Furthermore, in City of Boerne v. Flores (1997), the Supreme Court declared the Religious Freedom of Religion Act, where Congress tried to use the Enforcement Clause to overturn an earlier Court decision regarding the Free Exercise Clause, was unconstitutional. If Congress wants to enact its power under the Enforcement Clause of the Fourteenth Amendment, the legislation they are proposing needs to remedy or prevent actions that are prohibited by the Fourteenth Amendment.

Further Reading

For more on the Fourteenth Amendment, see this Florida State University Law Review article, this Stanford Law Review article, and this Yale Law Journal note