14th amendment
The rebirth of the Constitution
Justice denied anywhere diminishes justice
everywhere.- Martin Luther King Jr.
Origins
Post Civil War
 Competing views of peace
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Lincoln
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Radical Republicans
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Wanted to retain power gained during Civil War
13th amendment
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Harsh war—quick peace
Original plan was to re-admit the Southern states after the
acceptance of the 13th
Presidential Restoration under Andrew Johnson
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Black Codes passed in Southern states
Reconstruction Acts placed the former confederate states under
military rule, and prohibited their congressmen's readmittance
to Congress until after several steps had been taken, including
the approval of the 14th.
1861-1877-Reconstruction
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Civil Rights Act 1866
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Passed over Johnson’s veto
Made everyone in US a citizen
Cannot deny anyone the rights to contract, own land, sue (attempted to
overturn Black Codes)
Reconstruction Act 1867
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Divided south into 5 military districts
To regain admittance to the union states must…
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1. draft a constitution which allows black people to vote
2. must ratify the 14th amendment
14th amendment
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Added in 1868- one of the Civil War Amendments (13,14,15) to protect
the rights of newly freed slaves
Specifically addressed the states
Early cases involved corporations- not civil rights
Provisions*
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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
*Cited more often in modern litigation than any other amendment
Citizenship
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Defined national and state citizenship
Overturned the case of Dred Scott v Sanford (1857)
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Dred Scott lived in territories where slavery was illegal and sued
for freedom
Court ruled 6-2 that any person descended from black Africans,
whether slave or free, is not a citizen of the United States,
according to the U.S. Constitution.
Native Americans not granted US citizenship until 1924
interpreted to mean that children born on United States
soil are U.S. citizens
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jus soli, or "right of the territory
“The first requisite of a good citizen in this republic of ours is that he
shall be able and willing to pull his own weight.” Theodore Roosevelt
Privileges and Immunities
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Echoes language in Article IV
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Slaughterhouse Cases (1873)
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Still somewhat vague
Louisiana had created a partial monopoly of the slaughtering business and
gave it to one company
Competitors argued that this created "involuntary servitude," abridged
"privileges and immunities," denied "equal protection of the laws," and
deprived them of "liberty and property without due process of law.“
Court held that the 14th was not violated and devoted most of its opinion to
a narrow construction of the privileges and immunities clause, which was
interpreted to apply to national citizenship, not state citizenship.
Saenz v Roe (1999)
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Court used clause to forbid states to reduce welfare benefits to newly
arrived residents restricted the right to travel
Due Process Clause
and Incorporation
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Identical to 5th amendment except now applies to the states
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Barron v Baltimore (1833)
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Court held that the Bill of Rights restricted only the federal government
Selective Incorporation
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addition of the 14th applied portions of the amendments to the States through a
series of Supreme Court decisions
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Gitlow v New York (1925)
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Gitlow was arrested for violating New York law punishing the advocacy of
overthrowing the government
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Argued the arrest was a violation of the 1st amendment
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Court ruled that the 1st amendment applied to the states- incorporated
freedom of speech
Palko v. Connecticut (1937)
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Court held that some Bill of Rights guarantees--such as freedom of
thought and speech--are fundamental, and that the Fourteenth
Amendment's due process clause absorbed these fundamental rights and
applied them to the states.
Incorporated Rights vs. Non-Incorporated Rights
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See handout
Substantive Due Process
protected the rights that were not specifically listed
in the Constitution
core
of the law must be fair
“liberty” interests
“property” interests
•Abortion (Roe v Wade)
• Marriage (Loving v
Virginia)
•Privacy (Texas v
Lawrence)
Mildred and Richard Loving
Equal Protection Clause
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No unreasonable discrimination under the
law
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If a law treats people differently, the state
must demonstrate a good reason for it.
Our constitution is colorblind, and neither knows nor
tolerates classes among citizens. In respect of civil rights,
all citizens are equal before the law”
--Justice Harlan’s dissent in Plessy v Ferguson 1896
Origins of Equal Protection
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The Declaration of Independence, “We hold these truths
to be self-evident, that all men are created equal…”
Framer’s concerned with equality in terms of inherited
privilege. Article I, section 9 -"No Title of Nobility shall be
granted by the United States”
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Constitution tacitly endorsed a flagrant denial of equality—slavery.
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Article I, section 2, apportions Representatives according to the number
of "free persons" and three-fifths of "other persons."
The Bill of Rights establishes a number of prohibitions
against action by the federal government that would deny
equal treatment under the law (Amendments 1, 4, 5, 6, 8).
13th Amendment abolished slavery in 1865.
Equal Protection Clause was crafted after the Civil War in
order to give the newly freed slaves legal protection.
Specifically worded to provide protection of the rights of all
"persons." Thus it has recently been used in the defense
of the rights of non-citizens.
Is this a violation of my equal protection?
• Three levels of analysis
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United States v. Carolene Products Co. (1938)
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A 1923 act of Congress banned the
interstate shipment of "filled milk" (milk
with skimmed milk and vegetable oil
added). A manufacturer, indicted for
shipping filled milk, challenged the law. The
Court upheld the act.
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"Footnote Four“- Justice Harlan Stone
applied minimal scrutiny (rational review)
to the economic regulation in this case, but
proposed a new level of review for certain
other types of cases.
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Legislation aimed at discrete and insular
minorities, who lack the normal protections
of the political process, should be an
exception to the presumption of
constitutionality, and a heightened standard
of judicial review should be applied.
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Strict scrutiny first applied in Korematsu v
US 1944
Level of Review
Ends
Means
Strict Scrutiny
Compelling
Narrowly
tailored
Important
Substantially
Related
Legitimate
Rationally
Related
Race
(Brown v Board)
national origin
religion
Intermediate
Gender
(US. v Virginia)
Rationality
Age,
Disability
Poverty
sexual
Evans)
orientation (Romer v
Equal Protection v Equality of Condition
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Equality of Condition- a form of egalitarianism which seeks to
reduce or eliminate differences in material condition between
individuals or households in a society.
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Equalizing income and/or total wealth
Affirmative Action- a policy or a program which gives preference to
some group of people with the stated goal of countering past or
ongoing discrimination against them. It can take many forms including
priority acceptance for government contracts, education, or
employment and/or language training or vocational training.
"Equality, in a social sense, may be divided into that
of condition and that of rights. Equality of condition is
incompatible with civilization, and is found only to
exist in those communities that are but slightly
removed from the savage state. In practice, it can
only mean a common misery." –James F Cooper
Equality may perhaps be a right, but no power on
earth can ever turn it into a fact.- Honore De Balzac