7.3 The Fourteenth Amendment: Due Process, Equal Protection & Selective Incorporation

The Fourteenth Amendment: Due Process, Equal Protection & Selective Incorporation

Quick Summary: Ratified in 1868 in the aftermath of the Civil War, the Fourteenth Amendment represents the "Second Founding" of the United States. By guaranteeing birthright citizenship, prohibiting states from denying due process of law, and mandating equal protection under the laws, the amendment radically altered American federalism. Through the judicial doctrine of selective incorporation, the Supreme Court has utilized the Fourteenth Amendment to enforce nearly all protections of the Bill of Rights against state and municipal governments, while establishing three rigorous tiers of judicial review to adjudicate equal protection challenges.

Prior to the Civil War, the federal Constitution primarily restrained the national government, leaving individual states free to curtail civil liberties unless restricted by state constitutions. The Fourteenth Amendment transformed this original balance of power, creating federal constitutional guarantees that protect citizens directly against state-level tyranny, discriminatory legislation, and unequal legal treatment.

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Historical Context: The Reconstruction Amendments and the Second Founding

Following the defeat of the Confederacy, the United States entered the era of Reconstruction (1865–1877). Although the Thirteenth Amendment (1865) abolished slavery and involuntary servitude, former Confederate states immediately enacted restrictive state statutes known as the Black Codes. These laws sought to reduce formerly enslaved African Americans to a condition of virtual peonage by restricting labor mobility, banning gun ownership, prohibiting assembly, and denying access to courts.

To permanently dismantle the Black Codes and neutralize Southern resistance, the Republican-led Congress passed the Fourteenth Amendment in 1866, with formal ratification achieved in 1868. The amendment was designed to accomplish three immediate historical goals:

1. Overturn Dred Scott v. Sandford (1857): In Dred Scott, Chief Justice Roger Taney infamously ruled that African Americans were not citizens under the Constitution and possessed "no rights which the white man was bound to respect." The Fourteenth Amendment explicitly reversed this doctrine by enshrining universal national citizenship.
2. Provide Constitutional Authority for Civil Rights Legislation: It supplied a secure constitutional foundation for the Civil Rights Act of 1866, ensuring future congressional majorities could not repeal basic civil protections.
3. Restrain State Governments: It transferred primary responsibility for defending civil rights from the individual states to the federal government and federal courts.

Together with the Thirteenth Amendment and the Fifteenth Amendment (1870, prohibiting voting discrimination based on race), the Fourteenth Amendment forms the Reconstruction Amendments—often referred to by constitutional scholars as America's "Second Founding."

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The Four Core Clauses of Section 1

Section 1 of the Fourteenth Amendment contains fifty-three words that constitute the most litigated text in American constitutional law:

                    [ SECTION 1 CLAUSES ]
                     /        |        \
                    /         |         \
        Citizenship Clause    |     Privileges or Immunities
        • Birthright rule     |     • Gutted by Slaughter-House
        • Overturned Dred     |     
                              |     
             +----------------+----------------+
             |                                 |
     Due Process Clause              Equal Protection Clause
     • Procedural Due Process        • Three Tiers of Scrutiny
     • Substantive Due Process       • Engine of Civil Rights
     • Vehicle for Incorporation     • Anti-Discrimination

1. The Citizenship Clause

"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."

This clause established the constitutional principle of jus soli (birthright citizenship). Anyone born physically within the territory of the United States and subject to its legal jurisdiction is automatically a full United States citizen and a citizen of their state of residence, regardless of their parents' nationality, race, or immigration status. In United States v. Wong Kim Ark (1898), the Supreme Court confirmed that a child born in San Francisco to Chinese parents—who were legally barred from naturalizing under the Chinese Exclusion Act—was nonetheless a native-born U.S. citizen at birth under the Fourteenth Amendment.

2. The Privileges or Immunities Clause

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

The framers of the amendment intended this clause to protect the fundamental rights of national citizenship from state abridgment. However, in The Slaughter-House Cases (1873), a conservative Supreme Court majority interpreted the clause extremely narrowly, ruling that it protected only a tiny handful of federal rights (such as traveling across state lines, navigating international waterways, and seeking protection on the high seas), and did not apply the Bill of Rights to the states. Although widely criticized by legal scholars, this ruling gutted the Privileges or Immunities Clause, forcing subsequent civil rights advocates to rely on the Due Process and Equal Protection Clauses.

3. The Due Process Clause

"...nor shall any State deprive any person of life, liberty, or property, without due process of law;"

While the Fifth Amendment restricts federal power, the Fourteenth Amendment's Due Process Clause applies directly to state and local governments. In constitutional jurisprudence, this clause contains two distinct branches:

• Procedural Due Process: Mandates that state governments must follow fundamentally fair, transparent legal procedures before depriving an individual of life, liberty, or property. This requires adequate notice of charges, an opportunity to be heard before an impartial and neutral judge, the right to present evidence and witnesses, and the right to appeal an adverse ruling.
• Substantive Due Process: A legal doctrine holding that the word "liberty" in the Due Process Clause protects certain fundamental unenumerated rights and personal freedoms from government infringement, no matter how fair the procedures used to enact or enforce the law might be. The Supreme Court has utilized substantive due process to protect rights deeply rooted in American tradition, including the right to privacy (Griswold v. Connecticut, 1965), the right to marry across racial lines (Loving v. Virginia, 1967), and the right to marital and family autonomy.

4. The Equal Protection Clause

"...nor deny to any person within its jurisdiction the equal protection of the laws."

The Equal Protection Clause mandates that state governments must treat similarly situated individuals equally. It forbids state and local governments from drawing unreasonable, arbitrary, or invidious distinctions between groups of people. It serves as the constitutional catalyst for desegregation (Brown v. Board of Education), voting rights reforms ("one person, one vote" in Reynolds v. Sims), and gender equality mandates.

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The Doctrine of Selective Incorporation

One of the most consequential developments in American constitutional history is the incorporation doctrine—the process through which the Supreme Court made the protections of the Bill of Rights applicable to state governments.

The Historical Starting Point: Barron v. Baltimore (1833)

In the early Republic, the Supreme Court ruled definitively in Barron v. Baltimore (1833) that the Bill of Rights applied strictly to the federal government, not to state or municipal governments. Writing for the Court, Chief Justice John Marshall affirmed that if a state constitution did not protect free speech or property rights, citizens had no recourse in federal courts.

Total vs. Selective Incorporation

Following the ratification of the Fourteenth Amendment in 1868, legal theorists debated how the amendment interacted with the Bill of Rights:

• Total Incorporation: Advanced by Justice Hugo Black, this theory argued that the Fourteenth Amendment was intended to incorporate all provisions of the first eight amendments in one stroke, applying every single Bill of Rights protection to the states.
• Selective Incorporation: Championed by Justice Felix Frankfurter and Justice Benjamin Cardozo, this prevailing approach held that the Court should incorporate protections on a case-by-case basis. The Court incorporates only those rights deemed "fundamental to the American scheme of justice" or "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937).

Key Incorporation Milestones

Through selective incorporation, the Supreme Court utilized the Fourteenth Amendment's Due Process Clause to nationalize civil liberties across the twentieth and twenty-first centuries:

Note on Non-Incorporated Provisions: A few minor provisions have never been incorporated to the states: the Third Amendment prohibition against quartering troops, the Fifth Amendment requirement of a grand jury indictment for felonies, and the Seventh Amendment right to a jury trial in civil lawsuits exceeding twenty dollars.

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Equal Protection: The Three Tiers of Judicial Review

When a citizen challenges a state law alleging that it violates the Equal Protection Clause by treating different classes of people unequally, the Supreme Court does not apply a single uniform standard. Instead, the Court applies one of three tiers of judicial review (scrutiny) based on the nature of the classification and the right involved:

1. Strict Scrutiny in Practice

Strict scrutiny is the most demanding standard of constitutional review, often described by legal scholars as "strict in theory, fatal in fact." The government almost never wins under strict scrutiny unless it can prove an extraordinary, overwhelming social necessity. In Loving v. Virginia (1967), the state of Virginia defended its Racial Integrity Act banning interracial marriage by arguing that the law punished white and Black offenders equally. The Supreme Court rejected this claim, applying strict scrutiny to strike down anti-miscegenation laws nationwide because racial classifications violate the core purpose of the Equal Protection Clause.

2. Intermediate Scrutiny in Practice

Formulated in Craig v. Boren (1976) (which struck down an Oklahoma statute allowing women to buy 3.2% beer at age 18 while requiring men to be 21), intermediate scrutiny requires an "important" government objective. In United States v. Virginia (1996), the Court struck down the male-only admissions policy of the state-supported Virginia Military Institute (VMI). Writing for the Court, Justice Ruth Bader Ginsburg held that gender-based classifications cannot rely on overbroad generalizations or outdated gender stereotypes, demanding an "exceedingly persuasive justification."

3. Rational Basis Review in Practice

For ordinary economic, licensing, and social policies—such as requiring commercial truck drivers to pass vision exams, setting a legal drinking age of 21, or establishing retirement age brackets for state police officers—courts apply rational basis review. The law is presumed valid, and the state does not need to prove that its policy is wise or optimal; it must only show that the law is a rational means to achieve a legitimate public welfare objective.