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FOURTEENTH AMENDMENT

Why is the Fourteenth Amendment sometimes called a Second Bill of Rights?

The Bill of Rights—the first ten amendments of the Constitution—only protects individuals from the federal government. The beginning of the Bill of Rights refers only to "Congress shall make no law." This refers to the U.S. Congress, which was quickly interpreted by the U.S. Court to mean all three branches of the federal government— not just Congress.

However, in the 1833 decision on Barron v. Baltimore, Chief Justice John Marshall for a unanimous Court wrote that the Bill of Rights only limited the federal government, not the state governments. This meant that individuals harmed by their

LegalSpeak: Sections 1 and 5 of the Fourteenth Amendment

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; 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.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

For full text of the Fourteenth Amendment, see Appendix.

state or local governments could not state a claim under the U.S. Constitution's Bill of Rights. Rather they had to assert a claim under their own state constitution.

However, members of the 39th Congress in the aftermath of the Civil War created three amendments during the period of Reconstruction. Included among those three was the Fourteenth Amendment. The primary sponsor of the Fourteenth Amendment—Rep. John Bingham from Ohio—wanted the Fourteenth Amendment to extend the reach of the U.S. Bill of Rights to the states.

Eventually, the United States Supreme Court—nearly exclusively in the twentieth century—began to incorporate various provisions of the U.S. Bill of Rights to the states. The vehicle of this incorporation process was the "due process" clause of the Fourteenth Amendment.

Section 1 of the Fourteenth Amendment contains a due-process clause—"nor shall any State deprive any person of life, liberty, or property, without due process of law." The U.S. Supreme Court has used this due process clause to extend the Bill of Rights to the states.

What exactly is incorporation and how does this work?

This is a difficult concept that troubles even law school students when they take and study constitutional law. However, it is a vitally important concept to understanding the U.S. system of constitutional law.

Let's use the example of the First Amendment freedom of speech to explain how this works. The First Amendment prohibits the federal government from punishing individuals' freedom of speech under many circumstances. However, in the nineteenth century the U.S. Supreme Court determined that the entire Bill of Rights only protected individuals from the federal government. This meant that the First Amendment freedom of speech only protected individuals from invasions by federal officials. If a state or local police officer violated an individual's free-speech rights, he or she had to assert a constitutional claim under the state constitution.

That changed with the U.S. Supreme Court's interpretation of the First and Fourteenth Amendments in the early twentieth century. Remember that the due-process clause provides: "nor shall any state deprive any person of life, liberty or property without due process of law." The U.S. Supreme Court determined that "freedom of speech" was part of the "liberty" mentioned in the due-process clause of the Fourteenth Amendment.

In other words, the due-process clause provides that no state shall deprive any person of liberty, which includes freedom of speech. Throughout most of the twentieth century, the U.S. Supreme Court, through the process of selective incorporation and the due-process clause, extended the bulk of the Bill of Rights to the states.

Are all freedoms in the Bill of Rights extended to the states?

No, there are a few freedoms in the Bill of Rights that have not been extended to the states through the process of selective incorporation. The Fifth Amendment requirement of a grand jury has not been extended to the states. This means that a state criminal court defendant does not have a federal constitutional right to have his case screened by a grand jury before indictment. The Second Amendment "right to bear arms" has not yet been extended to the states. In the October 2010 term, the Court will hear a case out of the city of Chicago that may change that—McDonald v. City of Chicago.

Other provisions not incorporated are the Third Amendment quartering of troops and the Seventh Amendment right to a jury trial in a civil case.

What are the two core clauses of the Fourteenth Amendment?

The two most important clauses of the Fourteenth Amendment are the due-process clause and the equal protection clause. The due-process clause ensures that the government acts with a certain level of fundamental fairness before infringing on an individual's "life, liberty or property" interests. The equal-protection clause ensures that similarly situated individuals or classes of people are treated similarly.

What are the two types of due process?

The two types of due process are procedural due process and substantive due process. Procedural due process means that before the government can take away a life, liberty, or property interest of a person—such as a public employee's job—the government must provide certain procedures, such as notice and a hearing to challenge to the governmental action. Substantive due process means that a law must on its substance be reasonable and rational rather than arbitrary or irrational. In other words, some laws are said to be so unreasonable as to violate due process.

What is an example of an equal protection violation?

A prime example of an equal protection violation is to treat people differently based on their race or gender. The most famous equal-protection case in all of constitutional law is probably Brown v. Board of Education (1954) where the U.S. Supreme Court unanimously ruled that segregated public schools were "inherently unequal" under the Equal Protection Clause. Another example was the Supreme Court unanimously striking down a Virginia law that prohibited interracial marriages in Loving v. Virginia (1967).

Racial and gender classifications are subject to increased scrutiny by Courts. In fact, the U.S. Supreme Court has said that racial classifications—even racial classifications for a benign (non-discriminatory) purpose—are "inherently suspect." The court has also looked very searchingly at gender classifications.

 
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