The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of our most cherished—and most controversial. In arguing that these measures violate the Fourteenth Amendment, opponents equate such efforts with invidious discrimination rooted in belief in racial inferiority and superiority. In the case of Goldberg v. It does not give Congress authority to legislate as to property and contract generally, for example. Simply put, Northerners in were not yet ready for nationally guaranteed African American suffrage.

None of these offer strong support for the rights protected by substantive due process. First, Section Five was not designed to give Congress the power to redefine the concept of fundamental rights. Nowhere, though, does the Constitution say that, and the framers of the Fourteenth Amendment obviously did not believe this since they also passed the Reconstruction Act and imposed military rule over Southern states. Congress repeatedly reauthorized the preclearance requirement, including for five years in , for seven years in , and for 25 years in In all of these ways, the Supreme Court has improperly limited Congress and denied it the broad authority it should possess under Section Five of the Fourteenth Amendment.

First, it put an end to the idea that the due process methodology was backward looking. This approach accorded ameendment Congress the power to expand the protections of liberty and equality, as well as to prevent and remedy violations of rights amrndment by the courts. Apportionment Section Two of the Fourteenth Amendment deals with apportionment of representatives from the southern states.

In essence, RFRA subjected the actions of state and local governments to the same level of scrutiny that had been applied in earlier Supreme Court decisions interpreting the scope of the Clause.

14 amendment essay

When the Voting Rights Act was passed inthe preclearance provision was set to expire after five years. Prior to the Civil War, both state and national citizenship were the subjects of considerable controversy.

Finally, while the Fourteenth Amendment applies to a broad range of civil rights, it does not apply to political rights like voting, jury service, militia service, and office-holding. While this text fit nicely with procedural protections like the right to amendmnet jury, it was a peculiar fit with key substantive freedoms like the right to free speech.


One view is that these privileges and immunities include all of the rights in the Constitution, including the Bill of Rights. The Reconstruction Congress passed several laws along these lines; however, the Supreme Court struck down some of them, reading the Fourteenth Amendment as edsay reaching actions by state governments.

The Supreme Court continued with the liberty-of-contract doctrine in Adkins v.

Second, Section Five does not provide Congress with the power to create new rights or expand existing rights, but rather only with the authority to prevent or remedy violations of rights already recognized by the courts. If there is such a amend,ent power, does it encompass authority to define rights of amwndment applicable against other private persons? This principle of equal citizenship was at the core of the Republican vision for post-Civil War America. Finally, the Civil War and Reconstruction transformed the core meaning of certain key Bill of Rights protections.

Fourteenth Amendment | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute

Most importantly, in City of Boerne v. Privileges and immunities of citizens are civil rights as understood in nineteenth-century legal classifications. The Supreme Court has defined what property and liberty interests are in different cases. The Act included amensment formula that determines which states and counties need to get preclearance to change their election practices.

But the Court has also held that gender, immigration status, and wedlock status at birth qualify as suspect classifications. At one point, the Justices expressed the view that Congress can use its power under Section Five to expand rights, as well as to provide remedies for violations. This contention is simply amwndment.

But this ajendment raise another set of textual and historical difficulties. The most obvious example is abortion. Section 5 of the Fourteenth Amendment explicitly authorizes Congress to enforce the Amendment, including the Privileges or Immunities Clause. New YorkU.


14 amendment essay

Chief Justice Taney concluded that Scott was not a citizen of any state for purposes of the diversity jurisdiction because the Constitution implicitly limited both state and national citizenship on racial grounds, generally excluding individuals ameendment Scott who were of African descent.

By contrast, the incorporation of the Bill of Rights against the states—applying some of its provision to state governments as well as the federal government—is far less controversial.

Another view is that it only meant to make the Bill of Rights applicable to the states. If ameendment fact Section Five of the Amendment reported by the Joint Committee in June had been so understood, one would have expected to have heard at least amehdment comment from those Republicans who had so vigorously opposed the broadly worded version that was proposed in February.

Fourteenth Amendment

Thus, this view sees the purpose of the Privileges and Immunities Clause as applying all of the rights in the Constitution to all of the states.

In particular, some scholars and judges argue that it makes little sense to apply the Establishment Clause edsay the First Amendment to the states. The need to preserve party unity provided the background for the drafting of Sections One and Five.

14 amendment essay

It also ensured that federal citizenship amendmment also made primary, which meant that states could not prevent freed slaves from obtaining state citizenship and thus federal citizenship.

First, some people believe that the individuals who take opportunities on account of racial preferences are actually wealthier than those who are displaced. The abolition of slavery meant that the representation of the former slave in the House of Representatives increased. In general, legal protections associated with national citizenship are immune from limitation by state law because of the supremacy of federal law under Article VI of the Constitution.