Amendment XIV

Amendment XIV

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; Hess v Pawloski nor shall any state deprive any person of life, liberty, or property, without due process of law; actus reus, personal jurisdiction, Pennoyer v Neff,service of process; venue; class actions; specificity, legality, mental competency nor deny to any person within its jurisdiction the equal protection of the laws. [Jackson v Indiana]
. . .
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

History

The Amendment was adopted in order to ensure that the Civil Rights Act of 1866, which was passed over Johnson's veto, would remain constitutional and in force regardless of future political outcomes.

equal protection

The equal protection clause restricts the types of classifications on which government can act.

methods:

rational basis

wealth classification

sexual orientation

heightened scrutiny

gender classification

alienage classification

strict scrutiny

racial classification

alienage classification

Questions about equal protection arise when the government treats one category of people differently than another category. Note that the substantiality of the burden does not matter (cf. the Jim Crow practice of small-scale oppression such as segregated drinking fountains).

The trend for the last 30 years has been not to create new suspect classes protected from government action by something stronger than rational basis review; in dealing with other classifications, the Court has generally refused outright to create a new suspect class (the elderly, the mentally ill), or used rational basis review in theory but with heightened scrutiny in practice. See [City of Cleburne v Cleburne Living Center] (mentally retarded); [Romer v Evans] (homosexuals).

The meaning of the word "protection" is unclear; the clause is often read as if it guarantees equal treatment by the states.

Due process

Implied fundamental rights

Implied fundamental rights are rights that the Court says exist but do not appear explicitly in the Constitution. The question in substantive due process claims is whether the government has deprived an individual of something that the government may not constitutionally take away. Compare the debate over [constitutional incorporation], which asks whether the Bill of Rights applies to the states because of Amendment XIV.

The real debate appears in [Calder v Bull], as to whether courts can go beyond the text of the Constitution. Chase argued that judges are not limited by text, and may use principles of natural law; Iredell, in contrast, argues that all rights enforced must be shown in the text of the Constitution. Iredell's approach has largely won, of course, but the question has shifted to the extent to which judges can imply rights against majoritarian action from unclear or ambiguous text.

The textual basis for most implied rights has been the due process clauses of Amendment V and Amendment XIV. While the privileges and immunities clause seems a more natural textual provision for implied rights, substantive due process has been used more frequently. Substantive due process generally argues that no matter how much process is available.

Privileges and immunities

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
Constitution, Article IV, § 2

The Slaughterhouse Cases essentially removed the privileges and immunities clause of § 1 as the basis for implied fundamental rights. More broadly, the Slaughterhouse Cases argued that Amendment XIV did not fundamentally reorder American federalism, thus limiting Congress' powers under § 5 of Amendment XIV to remedy racial discrimination by and in the states. Note that the Commerce Clause has been often used instead to pass civil-rights legislation.

Finally, note that the dissents in the Slaughterhouse Cases argued that the privileges and immunities of Amendment XIV protected economic rights; as lawyers trained during the civil war, they implicitly equated limits on free labor with slavery.

substantive due process

§ 5 enforcement powers

Congress has the power to legislate through § 5 in order to pursue a "proportional and congruent" remedy against past violations of § 1 rights. [City of Boerne v Flores]; [US v Morrison].

Note that Seminole Tribe of FL v FL essentially fuses caselaw on Congress' § 5 enforcement power with caselaw on when Congress can use § 5 to abrogate state sovereign immunity.

Only a few isolated cases deal with the Privileges and Immunities Clause, and its effect is minimal.

14 page(s) referring to Amendment XIV
World-Wide Volkswagen Corp v Woodson
service of process
Hess v Pawloski
Constitution
actus reus
right to treatment
Jones v US
personal jurisdiction
Mullane v Central Hanover Bank and Trust
specificity
McGee v International Life Insurance Co
class action
capital murder
legality

[alias: Equal Protection Clause]
[alias: due process]
[alias: privileges and immunities]

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