The Civil Liberties Defense Group

The Fourteenth Amendment

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No one shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

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

    The Fourteenth Amendment is the most important source of federal rights outside the Bill of Rights.  It was passed shortly after the Civil War at a time when many states were failing to respect the federal rights of their citizens.  It extended citizenship and the right to vote to all men 21 and older.  Its Privileges and Immunities Clause requires each state to respect the result of legal proceedings in other states.  The most important provision of the Amendment is its Due Process Clause, through which nearly all the provisions of the Bill of Rights are made applicable against the states.  Previously, the Bill of Rights had only been deemed applicable against the federal government, but through selective incorporation those rights have been gradually incorporated into the Fourteenth Amendment's Due Process Clause.  The Due Process Clause is also the source of substantive due process rights against the states.

    The most important source of new rights granted by the Fourteenth Amendment is the Equal Protection Clause.  It requires all citizens to be granted the equal protection of the laws, meaning that persons who are similarly situated must be similarly treated by their government.  This clause is analyzed under varying levels of scrutiny depending on the person or group being discriminated against.  Laws or government actions discriminating against racial minorities are subject to strict scrutiny, meaning that they must be necessary to advance a compelling governmental interest.  Laws discriminating against women are subject to intermediate scrutiny, meaning that they must be substantially related to an important governmental interest.  Most other laws and governmental actions are analyzed under the rational basis test, requiring only that a law be rationally related to a legitimate governmental interest.  The Equal Protection Clause even protects classes of one, meaning that a single person who is treated differently from similarly situated parties by his government may be granted relief if that differential treatment cannot be justified under the rational basis standard.

    Section Five of the Fourteenth Amendment is its Enforcement Clause. This clause provides the basis for remedial legislation such as 42 U.S.C.  § 1983.  42 U.S.C.  § 1983 is part of the Civil Rights Act of 1871, and provides the basis for what are often referred to as 1983 suits.  Section 1983 allows for a suit for damages in federal court whenever a local government violates the federal rights of one of its citizens. State governments are generally immune from suit due to sovereign immunity, but this immunity does not extend to counties or municipalities. This provides what is probably the strongest mechanism for individual citizens to protect their constitutional rights.