3.16 The Fourteenth Amendment
Chantel Chauvin and Kate McLean
Fourteenth Amendment Protections
The Fourteenth Amendment (Section 1) states, “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.”
The Fourteenth Amendment mandates that states do not deny their citizens’ due process of law. Due process can be summarized as making sure that the government treats people fairly. Part of fairness is giving people fair warning as to what behaviors are permitted and what behaviors are not permitted—putting people on notice of what the law is. Thus, legislators must be very careful when making new laws. They cannot make laws that are so poorly drafted such that a person of ordinary intelligence would not understand the law or that would allow police too much discretion in how they could interpret and apply the law because such a law would be considered void due to vagueness.
Arguably, no other provision in the Constitution is more important to procedural justice than the Fourteenth Amendment because it guarantees due process and equal protection. The due process clause was partially responsible for making nearly all of the criminal procedural rights guaranteed in the Bill of Rights applicable to the states (e.g., Gitlow v. New York, 1925). Additionally, the Due Process Clause has been interpreted as providing an independent source for other procedural justice rights that are not specifically enumerated, or listed, in the Constitution or Bill of Rights. For example, requiring proof beyond a reasonable doubt for criminal convictions is grounded in the Due Process Clause (In re Winship, 1970). Forbidding a state from compelling a criminal defendant to stand trial before a jury while dressed in identifiable prison clothes is another example (Estelle v. Williams, 1976). The due process clause has also been interpreted as the basis for providing substantive rights not explicitly guaranteed in the Constitution, like the right to privacy, the right of the mentally ill to be free from undue restraints, and the right to refuse medical treatment (Owen, et. al, 2019).
The Fourteenth Amendment also guarantees equal protection of the law. Generally, legislatures cannot make laws that treat people differently. Contrary to popular belief, the Equal Protection Clause does not mandate that the law treat everyone the same. Rather, the equal protection clause serves to guarantee equality in requiring that the law treat similarly situated people in a similar way (excluding discrimination based on characteristics like race, ethnicity, and religion). If, however, people are not similarly situated, then the law may treat people differently. Consider, for example, that the law may deprive people convicted of certain felony offenses of a variety of rights and privileges that are available to other people who are not similarly situated (that is, those without felony convictions), such as voting rights, the right to lawfully possess a firearm, and the ability to be licensed in certain professions (Owen, et. al, 2019).
When legislatures attempt to pass laws that treat people differently based on sex, for example, then the court reviews the law with heightened scrutiny—the law must be designed to achieve an important government interest. For example, laws that imply differential treatment by sex must be based on actual physiological differences and not archaic stereotypes. When legislatures attempt to pass laws that treat people differently based upon their race or ethnicity, then they have to have a more compelling reason to do so, and even then, the courts, employing “strict scrutiny,” are likely to declare such laws unconstitutional.
In fact, the Fourteenth Amendment is wary of differential treatment at all stages of the criminal justice process, from arrest to punishment. However, this does not mean that the courts, in their interpretation of the Fourteenth, have categorically prohibited criminal justice strategies that results in different outcomes on the basis of sex or race. In fact, some of the most prominent Fourteenth Amendment landmark cases have legitimized the ability of different criminal justice actors to consider demographic traits. For example, in the 1975 case United States v. Brignoni-Ponce, the Supreme Court ruled, unanimously, that law enforcement (in this case, Border Patrol) could not stop a vehicle, or execute a search, based solely on the presumed ethnicity or citizenship of the vehicle’s occupants. On its surface, this decision appears to outlaw racial profiling; yet, in its entirety, the Court’s decision validates the relevance of presumed ethnicity or citizenship in officers’ decisions to stop and search— as long as the suspect’s appearance is not the only “articulable fact” underlying reasonable suspicion or probable cause.
Other Court decisions interpreting the Fourteenth Amendment have made it more difficult for individual defendants or (groups of defendants) to argue that illegal discrimination led to their differential treatment in the criminal justice system. Most notably, the Supreme Court erected a nearly insurmountable standard for proving racial discrimination in McCleskey vs. Kemp (1987), discussed below.
The Incorporation Debate
When drafted and passed, the U.S. Constitution and the Bill of Rights applied only to the federal government. Individual states each had their own guarantees and protections of individuals’ rights found in the state constitutions. (See below.) Since 1868, the Fourteenth Amendment has become an important tool for making states also follow the provisions of the Bill of the Rights. It was drafted to enforce the Civil Rights Act passed in 1866 after the Civil War, given the recalcitrance of states in the former Confederacy. Section 1 of the Fourteenth Amendment prohibits the states from depriving any person of life, liberty, or property, without due process of law. It prohibits states from adopting any laws that abridge the privileges and immunities of the citizens of the United States and requires that states not deny any person equal protection under the law (U.S. Const. amend. XIV, § 2).
The practice of making the states follow provisions of the Bill of Rights is known as incorporation. Over decades, the Supreme Court debated whether the Bill of Rights should be incorporated all together, in one-fell-swoop, called total incorporation, or piece-by-piece, called selective incorporation. The case-by-case, bit-by-bit approach won. In a series of decisions, the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment makes enforceable against the states those provisions of the Bill of Rights that are “implicit in the concept of ordered liberty” (Palko v. Connecticut, 1937). For example, in 1925 the Court recognized that the First Amendment protections of free speech and free press apply to states as well as to the federal government (Gitlow v. New York, 1925). In the 1960s, the Court selectively incorporated many of the procedural guarantees of the Bill of Rights. The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill of Rights to the states.
Landmark Case: McCleskey v. Kemp
In 1987, Warren McCleskey was convicted in the murder of a police officer and sentenced to death. However, McCleskey appealed his sentence on the basis of racially-disparate treatment; specifically, his attorney presented powerful data on racial differences in the imposition of the death penalty in Georgia. According to the “Baldus Study,” individuals convicted of homicide in Georgia were four times as likely to receive the death penalty if they had killed white victims compared to Black victims. Yet the justices did not find these statistics sufficiently compelling to overturn McCluskey’s sentence, instead writing, “Apparent disparities in sentencing are an inevitable part of our criminal justice system.” Moreover, the McCleskey decision produced a new standard for proving racial discrimination in the criminal justice system, requiring appellants to produce evidence of conscious race bias—proof that police officers, prosecutors, or judges, for example, had intended to treat an individual differently on the basis of their race. For this reason, McCleskey v. Kemp is often lamented as a case that has made the rectification of racial inequalities in the justice system extraordinarily difficult.
Just one more podcast, this time with the Death Penalty Information Center.
Read up on more landmark cases concerning the 14th Amendment here: Purkett v. Elem.
