Essay On The 14th Amendment Equal Protection

Equal Protection Essay

Equal Protection is described as "the right of all persons to have the same access to the law and courts and to be treated equally by the law and courts, both in procedures and in the substance of the law". It is similar to the right to due process of law, but in particular applies to equal treatment as an aspect of fundamental fairness. The equal protection clause can be found in the Fourteenth Amendment of the Constitution. It simply states that, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...nor deny to any person within its jurisdiction the equal protection of the laws." In other words, this meant that the Constitution would become 'color-blind'. Military members of all branches are entitled to these fundamental rights.

The U.S. Navy Regulation states that equal protection under the law regardless of race, religion, culture, national origin, gender or political affiliation, is a recognized fundamental human right for all people, including military personnel. The Regulation goes on to say that equal opportunity shall be afforded to all on the basis of individual effort, performance, conduct, diligence, potential, capabilities and talents without discrimination as to race, color, religion, creed, sex or national origin. It also states that naval personnel shall demonstrate a strong personal commitment to stand on these principles and carry them out. The U.S. Army has a similar statement. The U.S. Army Regulation states that they will provide equal opportunity and treatment for soldiers, civilian employees, and their families without regard to race, color, religion, gender, or national origin. There are several benefits of equal protection for military members. These benefits include high morale of the military members, confidence in the fairness of decisions, selection of the most capable personnel for promotion, additional training and leadership, and public respect and support for the military.

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The Fourteenth Amendment contains a number of important concepts, most famously state action, privileges & immunities, citizenship, due process, and equal protection—all of which are contained in Section One.  However, the Fourteenth Amendment contains four other sections.  Section Two deals with the apportionment of representatives to Congress.  Section Three forbids anyone who participates in “insurrection or rebellion” against the United States from holding federal office.  Section Four addresses federal debt and repudiates debts accrued by the Confederacy.  Section Five expressly authorizes Congress to enforce the Fourteenth Amendment “by appropriate legislation.”  The states ratified the Fourteenth Amendment in 1868 in the immediate aftermath of the American Civil War, along with the other Reconstruction Amendments—the Thirteenth and Fifteenth.


Also known as the Naturalization Clause, the Citizenship Clause is contained in Section One of the Fourteenth Amendment. The clause conferred U.S. and state citizenship at birth to all individuals born in the United States.


In Scott v. Sanford, 60 U.S. 393 (1857), the Supreme Court held that African Americans were not U.S. citizens, even if they were free.

The Fourteenth Amendment, however, guaranteed that everyone born or naturalized in the United States and under its jurisdiction would be a United States citizen. It also ensured that federal citizenship was also made primary, which meant that states could not prevent freed slaves from obtaining state citizenship and thus federal citizenship. As such, the Fourteenth Amendment effectively overturned Sanford v. Scott.

Native Americans

In Elk v. Wilkins, 112 U.S. 94 (1884), the Supreme Court held that children born to members of Native American tribes governed by local tribal governments were not automatically granted citizenship under the Fourteenth Amendment. Congress, however, granted citizenship to Native Americans in 1924 when it passed the Indian Citizenship Act.


In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court held that when a child is born in America to non-citizen Chinese parents, that child is a United States citizen. The Court in Wong Kim also applied that ruling "[a]ll persons born or naturalized in the United States," finding that those persons "are citizens of the United States and of the State wherein they reisde."

State Action

The State Action Clause of the Fourteenth Amendment declares that a state cannot make or enforce any law that abridges the privileges or immunities of any citizen. In the Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court ruled that the Civil Rights Act of 1875, which prohibited racial discrimination in public accommodations, was unconstitutional because it tried to regulate private actors. The Court decided in United States v. Guest, 383 U.S. 745 (1966) that the Enforcement Clause gave Congress the power to regulate the private of individuals who conspired with state officials to deprive people of their rights under Section One of the Fourteenth Amendment. In later cases, the Courts tried to distance itself from the Guest decision, and in United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court rejected Guest, and struck down part of the Violence Against Women Act that provided a civil remedy for victims of sex-related violence.

The Court also handled a number of cases dealing with racial discrimination by private actors. In Shelley v. Kraemer, 334 U.S. 1 (1948), the Supreme Court decided that the judicial enforcement of a private restrictive covenant that prohibited non-Caucasian occupants violated equal protection to a black buyer, even though enforcing private restrictive covenants was generally valid and enforceable. In Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), a restaurant which leased space in a public parking garage was found to engage in racially discriminatory practices. The Supreme Court, influenced by the fact that the garage was used for public parking, ruled that the restaurant was closely tied to the state in such a way that the discrimination could be considered state action. As such, the Supreme Court decided that the restaurant's discrimination unconstitutionally violated the Equal Protection Clause. The Supreme Court in Reitman v. Mulkey, 387 U.S. 369 (1967) struck down a California constitutional amendment that prohibited enacting any law that restricted an individual from refusing to sell land to a buyer for any reason. The Court’s argument seemed to be that the amendment to the state constitution was a state action violating equal protection.

In a number of cases, the Court has continued to limit state action claims against private individuals. In Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), the Supreme Court ruled that Section One of the Fourteenth Amendment does not apply when electric utilities stop service to customers. The Court also determined in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978) that there was no Section One liability for a warehouseman selling stored property to make good back payments.

Privileges and Immunities Clause

There has been some debate over the meaning of the Privileges and Immunities Clause with several possible original meanings. A question arises as to whether the clause meant that all state laws should be applied equally to its citizens or that state laws should have certain substantive content. The substantive view can be further divided into two categories. One view is that these privileges and immunities include all of the rights in the Constitution, including the Bill of Rights. 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. Another view is that it only meant to make the Bill of Rights applicable to the states.

In Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3,230)(C.C.E.D.Pa., 1823), an early case concerning the Privileges and Immunities Clause, found that the Clause protects certain fundamental rights of all citizens. However, in Slaughter-House Cases, 83 U.S. 36 (1873), the Supreme Court rejected that interpretation, holding that the privileges of national citizenship were substantive, but they came about as a result of the federal government, the Constitution, or other laws. The fundamental natural rights were not included, and thus the equality function of the  Privileges and Immunities Clause was taken over by the Equal Protection Clause and the substantive functions were taken by the Due Process Clause. Aside from one case that was later overruled, the Supreme Court did not use the Privileges and Immunities Clause as the basis for decisions until 1999 with Saenz v. Roe, 526 U.S. 489 (1999), where California set welfare benefits for new residents at a certain level equal to what their former state provided for the first year of residency in California. The Court decided that part of the fundamental right to interstate travel was for new citizens of a state to be treated like other citizens of the state.

Due Process Clause

The Fifth and Fourteenth Amendments both contain a Due Process Clause, although the Fourteenth Amendment applies explicitly to the states. The Supreme Court has interpreted the Due Process Clauses in both articles as having the same meaning, as Justice Frankfurter describes in his concurrence in Malinski v. New York, 324 U.S. 401 (1945): "To suppose that "due process of law" meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection."

Due process is generally understood to contain two concepts: procedural due process and substantive due process. 

Procedural Due Process

Procedural due process guarantees fairness to all individuals. This fairness might require different elements to the accused, including the opportunity to be heard, given notice, and be given a judicial decision with a stated rationale. As a basic rule, the more important the right, the stricter the procedural process must be. The Supreme Court has defined what property and liberty interests are in different cases. In the case Board of Regents v. Roth, 408 U.S. 564 (1972), the Court held, "The Fourteenth Amendment does not require opportunity for a hearing prior to the nonrenewal of a nontenured state teacher's contract unless he can show that the nonrenewal deprived him of an interest in 'liberty' or that he had a 'property' interest in continued employment, despite the lack of tenure or a formal contract." 

Substantive Due Process

Although procedural due process is widely accepted, substantive due process is a bit more controversial. Modern debate regarding the substantive due process clause tends to focus on certain liberties which the Supreme Court has interpreted as belonging to citizens, with a large focus on economic liberties, such as the right to create a private contracts.

Economic Rights

Starting in the late 1800s, the Supreme Court used substantive due process to uphold a number of economic rights. In Lochner v. New York, 198 U.S. 45 (1905), the Supreme Court held that the Fourteenth Amendment protects a general right to make private contracts, and that a state may not interfere with this liberty in the name of protecting the health of the worker. The Supreme Court continued with the liberty-of-contract doctrine in Adkins v. Children’s Hosp., 261 U.S. 525 (1923) by holding that a minimum wage law for nurses violated the Due Process Clause. The Court also used substantive due process to protect other fundamental rights, such as in Pierce v. Society of Sisters, 268 U.S. 510 (1925) when the Court held that parents have the right to refuse to send their children to public school .

After the New Deal and the Constitutional Revolution of 1937 when the Court started to defer more frequently to Congress on issues of economic legislation, the Supreme Court's interpretation of the Due Process Clause changed.  Regarding Lochner's right to contract, two cases went directly against that holding. In Nebbia v. New York, 291 U.S. 502 (1934), the Supreme Court held that the state legislature may regulate prices of items, notwithstanding a right to private contract. And in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), the Supreme Court upheld Washington's state minimum wage law, effectively ending the Lochner era ideals of the right to private contract superseding a legislature's economic regulatory abilities. 

Privacy Rights

The Supreme Court has also used substantive due process to endorse other rights, such as privacy rights. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court endorsed a right to privacy, partially relying on substantive due process. The Court relied upon the right to privacy in several other cases involving individual liberties, such as permitting abortions in Roe v. Wade, 410 U.S. 113 (1973), and permitting private homosexual acts in Lawrence v. Texas, 539 U.S. 558 (2003). The Supreme Court did establish a limit to the doctrine in Washington v. Glucksberg, 521 U.S. 702 (1997), when it ruled that assisted suicide was not a liberty upheld under substantive due process.

Equal Protection

The Equal Protection clause of the Fourteenth Amendment is one of the most litigated sections of the Constitution. As a brief overview, the clause refers to the fact that all citizens of the United States are guaranteed equal protection under the laws of the United States. When a statute or ordinancediscriminates against an individual or a class of individuals, and those individuals sue, the court will apply one of three levels of scrutiny to the law in question: 

  1. Rational Basis
    1. this is the lowest level of scrutiny imposed 
  2. Intermediate Scrutiny
    1. this is an intermediate level of scrutiny imposed (typically used for laws which discriminate on the basis of gender, disability, or illegitimacy)
  3. Strict Scrutiny
    1. this is the highest level of scrutiny imposed (typically used for laws which discriminate on the basis of race, national origin, alienage, or religion, as well as for laws which infringe on fundamental rights)

 For a full in-depth analysis of equal protection, see the Equal Protection page of the Legal Information Institute.


Section Two of the Fourteenth Amendment deals with apportionment of representatives from the southern states. The abolition of slavery meant that the representation of the former slave in the House of Representatives increased. This clause of the Fourteenth Amendment was drafted to encourage Southern states to grant blacks the right to vote without forcing them to do so.  Congress did not really try to enforce the clause. In Saunders v. Wilkins 152 F.2d 235 (4th Cir. 1945), a candidate for Congress from Virginia sued under Section Two of the Fourteenth Amendment, trying to force the state to adopt an at-large electoral system because the state was not eligible for the nine electoral seats it had been granted after the 1940 census. The Court dismissed the case as a political question. This section is still in operation and would operate in future cases of rebellion. The Supreme Court affirmed in Richardson v. Ramirez, 418 U.S. 24 (1974) that under Section Two, states can prohibit convicted felons from voting after serving their prison sentence. Taking away the right to vote is referred to as "disenfranchisement, "and you can read more about it in the Wex article titled "Civil Rights."

Disqualification for Rebellion  

Section Three of the Fourteenth Amendment disqualifies an individual from serving as a state or federal official if that person has "engaged in insurrection or rebellion against" the United States. Although the clause was written in the context of the Civil War, it would theoretically still apply for members of future rebellions or insurrections against the United States.


The fourth section of the Fourteenth Amendment involved making the national debt sacrosanct and repudiating Confederate debt. In Branch v. Haas 7 Va. L.J. 473 (1883), a federal court decided that contracts involving Confederate debt would not be enforced, although contracts that involve Confederate currency are enforceable to prevent injustice to those who were required to accept them during the Civil War. The issue of the repudiation of the United States’ debt came up again in the Gold Clause Cases (1935). In those cases, the Supreme Court held that Congress exceeded its authority by refusing to pay bonds in gold, but that the debt holders could not recover because the damage was only nominal.

Enforcement Clause

Section Five of the Fourteenth Amendment is also known as the Enforcement Clause. This Clause grants Congress the power to pass laws that make Sections One through Four of the Fourteenth Amendment effective.


One of the limitations on the Enforcement Clause is that Congress is only permitted to enforce the provision through appropriate legislation. In Katzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme Court’s holding suggested that Congress could define the substantive scope of the Fourteenth Amendment. However, the Supreme Court rejected this suggestion in City of Boerne v. Flores, 521 U.S. 507 (1997). 

Enforcement Against Private Parties

In the Civil Rights Cases (1883), the Court ruled that Congress did not have the power to legislate against discrimination by private individuals, because Section One of the Fourteenth Amendment only applied to actions committed by a state or state agents. However, if the private party discriminates while engaging in public action (such as a private university which accepts federal funding), then that party would be subject to the Fourteenth Amendment.

Further Reading

For more on the Fourteenth Amendment, see this Florida State University Law Review article, this Stanford Law Review article, and this Yale Law Journal note. 


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