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Theresa Browning
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The Historic Importance of the 14th Amendment

In the wake of the Civil War, three constitutional amendments profoundly reshaped American society.  The 13th Amendment abolished slavery; the 15th extended voting rights to those former slaves (only males).  However, it was the 14th, ratified in 1868, that most-transformed this nation.  Even today, nearly 150 years later, it’s by far the most cited amendment in litigation.

The 14th Amendment begins: “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.”  Although it now seems benign, the historical context of that citizenship clause overturned arguably the most infamous case in Supreme Court history. 

In 1857, the Dred Scott case held that African-Americans (free or slave) were not American citizens simply because their slave ancestors weren’t citizens when the Constitution was enacted.  A rather ironic conclusion, since the Constitution, from 1787 until 1868, didn’t define citizenship at all.  Incidentally, in that era, States defined identified who citizens were or were not, and our definitions varied greatly until 1868. 

Such inconsistency led to the tragedy that was Dred Scott, and was an instigating factor toward civil war.  The 14th Amendment ended this debate by defining national citizenship for the first time in our history, thus mercifully overruling Dred Scott.

The 14th Amendment also contains a Due Process Clause, which seems odd since the Fifth Amendment states, “No person shall . . . be deprived of life, liberty, or property, without due process of law.”   Why the redundancy?  The devil, as they say, is in the details.

In 1833, the Court held in Barron v. Baltimore that the Fifth Amendment only limited the federal government . . . not states.  The fact that John Barron lost property ($4500 in damages) without due process mattered not.  Had the feds caused Barron’s loss, he’d have had a better case.  But since his damages resulted from the actions of the city of Baltimore (and thereby the state of Maryland), the federal Constitution offered him no remedy. 

The 14th Amendment’s Due Process Clause, enacted 35 years after Barron, completely redefined the application of the rights in the Constitution.  It reads, “No state shall . . . deprive any person of life, liberty, or property, without due process of law,” and thus became the first amendment to limit state action. 

Those three little words, “no state shall” paved the way for a plethora of 20th-century caselaw incorporating the rights in our federal Bill of Rights to the states.  The fact that the State of Indiana must provide criminal defendants with a court-appointed attorney (a Sixth Amendment right) is a clear example that the 14th Amendment requires states to guarantee federal Constitutional protections.

Finally, the most litigated part of the Constitution comes from the 14th Amendment’s Equal Protection Clause, which forbids states from denying their citizens equal protection under the law.  However, it wasn’t until the 1950s and ‘60s, that the Court began to enforce equal protection’s true spirit in cases where it struck down laws requiring racial segregation in public schools (Brown v. Board of Education) and laws banning interracial marriage (Loving v. Virginia).

Interestingly enough, not all laws that discriminate are unconstitutional under equal protection doctrine.  For example, we have laws that establish age limits for things like driving, voting, smoking, drinking, etc.  Such laws receive minimum scrutiny.  They’re almost always held constitutional, because any rational basis for the law (i.e. Five-year-olds shouldn’t drive a car, because they can’t see over the steering wheel) will suffice.

Above that standard is intermediate scrutiny, applied to laws that classify based on gender.  To survive this heightened scrutiny, courts require more justification than just any rational basis for the law’s existence.  The State’s interest must be important, and the law must be substantially related towards advancing that interest.

Finally, laws that categorize based on race or national origin, receive the strictest of scrutiny.  The phrase “strict in theory, fatal in fact” demonstrates that laws analyzed under this standard are viewed almost inherently unconstitutional, unless narrowly tailored to serve a compelling governmental interest.  And even then, they can also be struck down if there is any less restrictive means available.

The 14th Amendment came about at a pivotal time in our nation’s history.  It reshaped core values concerning citizenship, rights, and equality.  Nothing since its enactment has so profoundly changed our American identity, and we recognize and celebrate its impact on Law Day 2017.

Editor’s note: This article is offered for May 1’s annual Law Day announced by the American Bar Association to explain the significance of the 14th Amendment to the U.S. Constitution.  More information about Law Day can be found here.

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