Fourteenth Amendment

If the standard for the significance of law be its effects on the everyday life of citizens, then the Fourteenth Amendment is one the most significant aspects of American law. This is certainly the case in regard to the Bill of Rights and civil liberties and perhaps in regard to the Constitution itself. In illuminating the impact of this great Amendment, we will first view its evolvement and adoption as a part of post–Civil War reconstruction and then review the history and meaning of the guarantees of its great clauses: privileges and immunities, due process, and equal protection.

The Civil War and Reconstruction

The adoption of the Fourteenth Amendment in 1868 was to change the very nature of America. With the emancipation proclamation of questionable legal merit, the first order of post-war business was the adoption of the Thirteenth Amendment in 1865 and abolishing slavery. The major issue concerning the meaning and intent of the Thirteenth Amendment was whether the amendment could reach ‘‘the badges’’ of slavery—the conditions that the former slaves faced as a result of the bondage and oppression that they had suffered.

That Congress so intended to reach these ‘‘badges’’ is supported by the fact that the Congress adopted civil right’s legislation to protect the freed slaves in the South at the same time (Civil Rights Acts of 1865 and 1866) as it adopted the Amendment. Although this evidences the Framers intent that Congress could reach the badges of slavery under its enforcement power, the Framers feared that a still conservative Supreme Court might limit the Amendments and its enforcement power reach to abolition alone. This concern served as the predicate for the adoption, in May and June of 1866, of the most far-reaching constitutional protection of civil rights and liberties in our nation’s history, the Fourteenth Amendment. Of particular relevance and meaning are the self-executing right prohibitions to the states in Section 1, and Section 5’s empowering the Congress to enforce the newly creating rights delineated in Section 1.

Amendment XIV (1868)

Section 1. 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.

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

The State Action Limitation

Before we review the rights guaranteed by the noble clauses articulated in Section 1 and Section 5 of the Amendment, one issue begs attention because of its effect on the application of the Amendment as a whole. The Fourteenth Amendment speaks in language directed at state governments, ‘‘No state shall make or enforce,. . .nor shall any state deprive,. . .nor deny.’’ To what degree did this reference to the states indicate the framers intent that this limit application of the Amendment in regard to private forms of discrimination? This issue has been debated to this very day.

An answer supporting the Amendment’s reach to private discrimination is, as noted previously, that the same Congress that adopted the Amendment passed civil rights legislation enforcing the Amendment that was clearly aimed at private conduct. The importance of this question cannot be overstated, since ultimately the fate of freed persons in the South would be decided by their former masters, and if the Amendment could not reach private activity, private racial discrimination would undoubtedly flourish. The answer to this question awaited what the Framers correctly characterized as their major antagonist, the Supreme Court.

The Court faced this issue in the Civil Rights Cases in 1883. The onset of ‘‘Jim Crow’’ can be traced to the Court’s creation of the judicial fiction limiting application of the Amendment to affirmative ‘‘state action.’’ Affirmative in the sense that inaction, even though a state might allow discrimination by not acting, was not sufficient. It is worthy of note that this was one of a trilogy of cases in which the Court provided threshold interpretations of the Fourteenth Amendment that ‘‘watered down’’ the effect of the Amendments so as to deny its intended benefit not only to the freed persons in the South but to the nation as a whole. The impact of these decisions set back individual rights and liberties until the midtwentieth century, both doctrinally and substantively. It would be more than 100 years before the noble goals of the post-war era would meet fruition—although, that day would come. The other cases were Slaughter- House Cases, 83 U.S. 36 (1872) (Discussed in regard to the privileges and immunities clause, infra.) and Plessy v. Ferguson, 163 U.S. 537 (1896) (discussed in regard to the equal protection clause, infra).

The modern ‘‘story’’ of state action emphasizes the ability to reach some forms of what had previously been considered private and unreachable conduct and was closely associated with the rise of the civil rights movements in America in the mid-twentieth century, reaching its zenith in the 1960s and the ‘‘Warren Court.’’

These decisions changed the landscape of the state action doctrine, perhaps bringing it more in touch with the framers intent. Justice Harlan’s dissenting opinion in the Civil Right’s Cases, for example, would be drawn on in this regard. Yet, as the nation turned away from the civil rights era, the more conservative and ‘‘privacy’’ oriented Burger and Rehnquist Courts would limit and retreat from the Warren Court’s doctrine liberalizing the ability to reach private activity.

Two concepts have emerged unto which the Court will treat private activity as state action. First, certain private activities are so public in character that they satisfy state action, because they serve a ‘‘public function.’’ Note the potential breadth here, since many activities that are in private hands arguably serve a ‘‘public function.’’ In recent years, however, the Court has severely limited this doctrine by requiring ‘‘the exercise by a private entity of powers traditionally exclusively reserved to the State’’ Jackson v. Metropolitan Edison Company (1974). As if to emphasize the limitation of this concept, the Court held in Flagg Brothers v. Brooks (1978), that, ‘‘While many functions have been traditionally performed by governments, very few have been ‘‘exclusively reserved to the State.’’

Next, the government may be so involved in regulating private activities that the Court may find state action because of ‘‘significant state involvement.’’ Once again, although still a more functional path to reach private activity, the modern Court has limited application of this doctrine as well. Now the state must ‘‘significantly encourage private activity,’’ be a ‘‘joint actor or participant,’’ or maintain a symbiotic and close relationship with the private activity so that, ‘‘there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself’’ Jackson v. Metropolitan Edison Company (1974); Burton v. Wilmington Parking Authority (1961); Lugar v. Edmonsdson (1982).

At what point individual autonomy should end and the protections of the Fourteenth Amendment begin is an important thesis that underlies the concept of state action. In Moose Lodge v Irivs (1972), the Court weighed in with its own moral views on this issue by finding that a private club could discriminate against admission of African Americans based on their race, because the activity was private and lacked state action. The Court held, despite liquor licensing by the state, that, ‘‘Our holdings indicate that where the impetus for the discrimination is private, the State must have ’significantly involved itself with invidious discriminations,’ in order for the discriminatory action to fall within the ambit of the constitutional prohibition.’’

Since all of the clauses of the Amendment speak to the states, the state action limitation and the issue of private versus public in America are most consequential.

Privileges or Immunities

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

Incorporation

There is no doubt the first sentence of the Fourteenth Amendment had as its intent overruling the heinous Dred Scott v. Sanford (1856) decision. Despite the Court’s conclusion in Dred Scott that slaves were not ‘‘citizens’’ of the national government because they were mere chattels, now, ‘‘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.’’ The meaning of the second sentence, however, has produced as much debate concerning intent then perhaps any other verbiage in the Constitution: ‘‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’’ What are the ‘‘privileges or immunities’’ of federal Citizenship? If the first sentence overruled Dred Scott, did the second sentence overrule Barron v. Baltimore (1833), where the Supreme Court held that the ‘‘bill of rights’’ was not applicable to the states? Was this ‘‘short hand’’ language for the ‘‘Bill of Rights?’’ If it was, Baron would be overruled, the Bill of Rights would be applicable to the states, and the nation would have national protection of civil rights and liberties for the first time in its history. It would seem logical to so conclude based on the language of these two sentences, particularly because the now abolished ‘‘slavery’’ was a major reason for limiting the applicability of the Bill of Rights to the states. Yet, to so conclude would provide a profound change in the power balance between state and federal government, most particularly in the ‘‘new’’ post-war South. Incorporation of the Bill of Rights in the states via the privileges and immunities clause of the Fourteenth Amendment was a question of great meaning, and it awaited application of judicial review by the very Supreme Court the Framers feared.

In the first major post war decision interpreting the Amendment, the Supreme Court faced this most significant issue in the Slaughter-House Cases (1872). Despite what seemed to be the framers intent to overrule Baron, the Amendment’s author had stated the Amendment’s intent was, ‘‘to arm the Congress,. . . with the power to enforce the bill of rights’’ against the states, the Court would not so conclude. Justice Miller, speaking for the Court, refused to ‘‘radically change[s] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people,’’ placed the privileges and immunities clause in the constitutional ‘‘waste paper basket,’’ where it still rests today. The Court not only rejected ‘‘incorporation’’ but also provided a limited nature of rights that Miller concluded would be protected—rights already given by some other federal law. Offhand it does not seem likely that the Civil War was fought and the Fourteenth Amendment adopted for access to navigable water, seaports, parks, and to redress the national government Twining v. State of N.J. (1908). This rejection of incorporation set the stage for the onset of ‘‘Jim Crow’’ and apartheid that would follow.

For all practical purposes Slaughter-House remains ‘‘good law’’ today, and the Court has thus rendered the clause essentially ‘‘superfluous.’’ Almost 100 years later the dissents of Field and Bradley in Slaughter-House would reach fruition in regard to ‘‘fundament rights’’ incorporation, but by application of the due process clause of the Fourteenth Amendment as opposed to the privileges and immunities clause.

Due Process Of Law

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

Due Process Incorporation

The mandate that ‘‘. . . Nor shall any State deprive any person of life, liberty, or property, without due process of law,’’ seems to be procedural in character. Although Slaughter House was the death knell of ‘‘privileges and immunities’’ incorporation, that finding was not to be the end of the road when it came to the issue of incorporation and national protection of civil rights and liberties. The Court, by the 1930s, would turn to the ‘‘due process’’ clause as a basis for incorporation.

Although due process seems to conjure ‘‘procedural’’ as opposed to ‘‘substantive’’ rights, the use of the term ‘‘liberty’’ in the clause, and the plain and simple ‘‘need’’ for at least some national protection of civil rights and liberties, found it the most likely alternative for ‘‘incorporating’’ rights. By the Palko v. Connecticut decision in 1937, there was no longer any doubt that ‘‘due process’’ could embrace not only procedural rights but substantive rights as well. Paramount in this move to ‘‘due process’’ incorporation was the Court applying the free speech protection of the First Amendment to the States on the basis of the due process clause of the Fourteenth Amendment, because freedom of speech was ‘‘among the fundamental personal rights and liberties’’ Gitlow v. New York (1925).

If the due process clause was to serve as the basis for incorporation, particularly given the procedural nature of the right, the most significant question was how one would decide which rights were protected? This might have been a less difficult inquiry under the privileges and immunities clause. Recall the argument that the privileges and immunities of national Citizenship must have been the Bill of Rights and that the terminology was ‘‘short hand’’ language for such. The ‘‘textual’’ problem of incorporating via due process made this question quite difficult. In the Palko and Adamson v. California (1937) decisions, the debate between Justices Black, Cardoza, and Frankfurter reached historic proportion as the Justices debated how this process should be invoked.

Ultimately the Court settled on what as been described as fundamental fairness/natural law select incorporation. Natural law because this is an independent Fourteenth Amendment inquiry in regard to the significance and meaning of any particular right. Fundamental fairness because the ‘‘trademark’’ language in both Palko (double jeopardy) and Adamson (self-incrimination) is whether the right is ‘‘implicit in our concept of ordered liberty,’’ ‘‘deeply rooted in our civil and political institutions,’’ or a ‘‘principal of justice so rooted in the conscience of our people as to be ranked as fundamental.’’

‘‘Select’’ because the rights detailed in the first nine amendments are the ones most likely to be deemed ‘‘fundamental’’ via the preceding detailed nomenclature. The Warren Court’s active expansion of incorporation looked increasingly to the Bill of Rights to ‘‘selectively’’ incorporate more and more of its specific guarantees via the due process clause of the Amendment. The ‘‘fundamental fairness’’ inquiry would be used to decide which of the protections in the Bill of Rights should be selectively incorporated. To be sure, although selective incorporation centered on the first nine amendments, only those protections of the Bill of Rights deemed fundamental would be so included. Significantly, it was also possible that unarticulated rights not so specified could be deemed ‘‘fundamental’’ and held applicable to the states as well. By Duncan v. Louisiana (1968), the present position of the Court in regard to application of fundamental fairness selective incorporation seemed solidified as the Court concluded that the Sixth Amendment right to a jury trial was fundamental to ordered liberty and applicable to the states. By this time almost all of the provisions of the Bill of Rights had been incorporated.

This ‘‘fundamental fairness’’ inquiry, used by the Court to selectively incorporate ‘‘fundamental rights,’’ creates and secures rights by a substantive application of the due process clause. Using the due process clause in this sense has been described as ‘‘substantive due process.’’ Here the inquiry by which rights are incorporated and made applicable to the states is the approximate inquiry the Court uses to create fundamental rights that are not delineated in the Constitution.

Substantive Due Process

‘‘Substantive due process,’’ John Ely asserted, ‘‘sounds like a contradiction in terms—sort of like ‘green pastel redness’’’ Ely, Democracy and Distrust 18 (1980). ‘‘A contradiction in terms’’ because the concept of due process normally conjures procedural rights, ‘‘An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual’’ The American Heritage Dictionary of the English Language, 4th Ed. 2003.

Although the due process clause has been used to incorporate most of the Bill of Rights to the states, it invokes the greatest controversy when the Supreme Court applies it to create unarticulated rights not specified in the Constitution itself. This we call ‘‘substantive’’ due process. Substantive in the sense that the clause is not applied to protect ‘‘process’’ but to create and secure additional rights against which the government may only intrude with great difficulty.

Much the same as due process incorporation, we apply the fundamental fairness litany to create rights that are not articulated in the Constitution. The creation of unarticulated rights via substantive due process is a most controversial and oft-debated role for the Court.

Those asserting a more clause-bound basis for judicial interpretation, limited to the original intent of the Framers themselves, cite to the repudiation of the Court’s creation of the ‘‘liberty to contract’’ as an unarticulated right in Lochner V. New York in 1905. The creation of this unarticulated right by the Court’s substantive application of the due process clause has been criticized as an example of the danger in allowing the creation of such rights. The activism generated during the ‘‘Lochner era,’’ where the Court read ‘‘laissez-faire’’ capitalism as if it were a constitutional mandate, is the traditional armor for those who favor judicial restraint. The application of ‘‘substantive due process’’ to create unarticulated rights that a Court might find ‘‘implicit in our concept of ordered liberty and deeply rooted in this Nation’s history and tradition,’’ are the controversial tools of this trade.

Nonetheless, and with ongoing controversy, the Court in the modern era has continued to apply substantive due process to create and secure unarticulated constitutional rights. The creation of a right of privacy in Griswold v. Connecticut (1965) and its extension to ‘‘abortions’’ in Roe v. Wade (1973) are the most notable examples. In the modern era the Court has tended to apply ‘‘substantive due process’’ to conserve traditional social values or to deem privacy interests as fundamental based on a ‘‘respect for the teachings of history [and] solid recognition of the basic values that underlie our society’’ Moore v. East Cleveland (1977). Family, for example, is deemed a fundamental privacy interest ‘‘precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.’’ Ultimately, based on these themes, the Court has extended fundamental right protection ‘‘to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education’’ Planned Parenthood v. Casey (1992).

The creation of unarticulated rights rests at the root of a constitutional debate as to how a nonelected Supreme Court, enforcing the supremacy of the Constitution as fundamental law, should interpret the document in light of the framers intent and contemporary needs in a democratic society. Although most citizens today are well aware of the moral controversy extending from the abortion debate, very few are likely aware that among those who study the Court and the Constitution it is the issue of judicially created unarticulated constitutional rights via substantive due process that affords the greatest controversy. The modern Court, for example, has often cited to the word ‘‘liberty’’ in the due process clause to respond to this criticism and to ground these rights in the words of the Constitution. The magnitude of this polemic has been emphasized by the contemporary Senate conformation process of Supreme Court nominees, where nominees’ views on the right of privacy have been center stage.

Procedural Due Process

Since due process normally conjures process-based protection, there is no controversy in regard to this application. Procedural due process normally requires some form of individualized hearing before the state can invoke a depravation, for example, employment, license or welfare. It is, however, a right to ‘‘process,’’ or how a decision is reached, not the nature of the decision itself. There are two independent inquiries made when the Court applies the procedural protections of the due process clause. First, whether the right to due process protections apply, and second, once process is due, what type of process is required?

The Court has resorted to the specific terminology of the Fourteenth Amendment itself to decide if process is due. A state is required to grant due process if the individual so affected has a sufficient ‘‘liberty’’ and/or ‘‘property’’ interest. Although the interests are often state created and can thus be defined and limited by state law, they have nonetheless been interpreted with some degree of breadth.

A property interest sufficient to invoke due process procedural protection extends beyond ‘‘real property.’’ Thus, a welfare benefit, or entitlement, has been held as a sufficient property interest Goldberg v. Kelly (1970). The claim to an entitlement is not based on a constitutional right to such a benefit, but rather from a legislative decision by the state to offer the benefit, perhaps subject to certain conditions. A variety of cases after Goldberg have extended procedural due process guarantees to a wide range of other claimants: employees, students, prisoners, parolees, debtors, and automobile drivers.

The range of property interests that afford such protection are not ‘‘infinite,’’ and the Court has required a ‘‘legitimate claim of entitlement,’’ and or a ‘‘legitimate expectation to continued employment,’’ to invoke them Board of Regents v. Roth (1972).

A liberty interest sufficient to require due process reaches beyond ‘‘mere confinement’’ and may be invoked by a stigma that damages one’s reputation Wisconsin v. Constantineau (1971). Recently, however, the Court has limited the expansion of a liberty interest that is sufficient to require due process to circumstances where, ‘‘more tangible interests such as employment were present,’’ and ‘‘that reputation alone, apart from some more tangible interests such as employment,’’ is not ‘‘sufficient to invoke the procedural protection of the due process clause’’ Paul v. Davis (1976).

Once a sufficient property and/or liberty interest has been successfully advanced, or ‘‘process is due,’’ a court must then decide ‘‘what process is due.’’ Here the Supreme Court has made the process due dependent on the factual circumstances and interests in each case. Their guidance for the lower court extends from three criteria, now firmly established in Mathews v. Eldridge (1976), ‘‘First, the private interest that will be affected by the official action; second, the risk of a erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’’

Equal Protection

. . . nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.

The Meaning of Equality in an Economically Privileged Society

The Fourteenth Amendment’s guarantee that no state shall ‘‘deny to any person within its jurisdiction the equal protection of the laws,’’ is perhaps America’s greatest anomaly. In a society where privilege abounds, a grant of ‘‘equal protection’’ seems to conflict with our core socioeconomic values. To enforce the equalitarian mandate of this language on our society via judicial review would likely have a revolutionary impact. Consequently, and perhaps much the same as the unequivocal language of the First Amendment, the history of the equal protection clause has been centered around how to limit its meaning and avoid a judicially led reordering of American society.

It is worth noting that almost all laws discriminate. In this regard, for example, a criminal sanction discriminates against the convicted. Here, of course, the argument is that the state has a justified purpose in discriminating against the convicted. Viewed in this sense the clause would be interpreted as allowing a state to deny equal protection, depending on its purpose.

 With this in mind, and despite the unequivocal language of the equal protection clause, the Court has interpreted the clause as if it read, ‘‘A state may deny to any person within its jurisdiction the equal protection of the laws if it has a sufficient purpose.’’ This analysis has at a minimum successfully limited an enforcement of the clause that would challenge the very ethic of privilege that abounds in America. Any study of equal protection is then an analytical inquiry into whether a state has a sufficient purpose to defend its discriminatory classification. Our review of equal protection will thus center on the degree of scrutiny the Court applies to evaluate a state’s purpose. Here the Court, over the years, has devised a method that depends on the classification and/or interest that is discriminated against. The standards the Court applies, particularly how closely they scrutinize a state’s purpose in discriminating, are the central issue in the application of equal protection doctrine.

The Rational Purpose Test

The traditional restraint the Court has historically applied in enforcing the equal protection clause has been described as the old equal protection and is identified as the rational purpose test. Here the Court will analyze whether the state has a legitimate purpose and whether or not the means it has chosen to achieve its purpose are rationally related to the attainment of its ends. In practice, this rational purpose review deferred to the legislative process. The application of this minimum scrutiny was so deferential that it was described as ‘‘fatal in theory but not in fact.’’ This was the case because any rational purpose asserted by the state seemed adequate to defend the constitutionality of its statute Williamson v. Lee Optical (1955).

In the modern era, the ‘‘lessons of the Lochner’’ have mandated minimal scrutiny of a state’s purpose in cases concerning ‘‘socio-economics’’ Dandridge v. Williams (1970). Although application of minimum scrutiny in regard to socioeconomics issues continues unto this day, the Court has recently applied the rational purpose test with what it describes as ‘‘teeth,’’ so that in some circumstances the test may be ‘‘fatal in theory and in fact.’’ Where parties can prove the means chosen by the state are ‘‘arbitrary and/or irrational’’ in relation to its ends, statutes have been held unconstitutional even under minimum scrutiny. Thus, in Cleburne v. Cleburne Living Center (1985), the Court applied the rational purpose test in striking down a state statute that discriminated against the disabled and reached much the same result in Romer v. Evans (1996) in striking Colorado’s Amendment 2, because it ‘‘classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.’’

In a meaningful review of the present status of the rational purpose test, the majority in Romer commented, ‘‘In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous,’’ and that even though Amendment 2 failed this inquiry, ‘‘if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.’’

The Compelling Purpose Test: Strict Judicial Scrutiny

If the rational purpose inquiry was the only standard applied in equal protection analysis, the impact of the clause and its powerful verbiage would likely have become meaningless. Perhaps because of such and by the onset of the ‘‘Warren Court,’’ a dual standard, two-tier approach, referenced in the Romer opinion above, provided a basis for judicial activism in regard to the clause. The level of judicial scrutiny applied to a state’s legislative purpose now depended on who was classified and what rights the legislation discriminated against. If the ‘‘old’’ equal protection was the deferential rational purpose test, this dual standard test became the ‘‘new’’ equal protection. If a state discriminated against a racial classification or denied a fundamental right the Court would apply strict scrutiny, and the state would be required to prove a compelling purpose. Application of this dual standard seemed to mean that a state’s successful defense of its legislation became all but impossible. The compelling purpose test of the new equal protection was thus ‘‘strict in theory but fatal in fact.’’

Much the same as our discussion of the current application of the rational purpose test, the Court in the modern era has applied a compelling purpose test that is strict in theory but not fatal in fact. A review of the application of strict scrutiny and the present means of analysis is best served by viewing the evolvement of the two conduits to compelling purpose review—race-based classifications and the denial of fundamental rights.

Race-Based Classifications

That the Supreme Court has closely scrutinized racebased discrimination should come as no surprise given the Civil War and the primary purpose of the Fourteenth Amendment and the equal protection clause. The Court’s opinion in Strauder v. West Virginia (1880) certainly exemplified such, ‘‘[What is equal protection] but declaring, [in] regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? [That] the West Virginia stature respecting juries [is] such a discrimination ought not to doubted.’’

Based on this premise, the Court has traditionally treated all disadvantaged racial classifications as inherently suspect, mandating close judicial scrutiny and requiring the state to prove a compelling purpose. Traditionally, the closest scrutiny has been applied to what the Court has described as discrete (easily identifiable) and insular (isolated) minorities who have a history of being discriminated against and disadvantaged in the majoritarian process. The degree to which this approach would be applied to any racial group, as opposed to a ‘‘discrete and insular’’ racial minority, awaited the modern civil rights era and the onset of Affirmative Action.

How, given this history, could Jim Crow and apartheid flourish in the South for some 100 years after the adoption of the clause? The answer rests in the conclusion of the Court in Plessy v Ferguson (1896), that racial segregation imposed by the force of state law satisfied the mandate of the equal protection clause. Viewed in this sense, Brown v. Board of Education (1954) was of greatest import as an antiapartheid case, holding that separate but equal was unconstitutional and inherently unequal. Even a determination that apartheid was unconstitutional, however, did not rid us of racial discrimination. In postapartheid America, the Court faced two significant issues in this regard.

Life and discrimination are subtle. It is possible, for example, to discriminate even though a statute is neutral on its face. In postapartheid America, this was a major issue of consequence in regard to race-based discrimination. What resolution when there was a racially discriminatory effect, yet the statute itself was neutral? To require affirmative proof that a state ‘‘intended’’ to discriminate in such a circumstance would be an extremely difficult, if not impossible, burden. This is the case in regard to proving anyone’s intent.

Yet, the Supreme Court, as it withdrew from the leadership it had exercised in the civil rights arena, precisely so held. In Washington v. Davis (1976), the Court found that ‘‘official action will not be held unconstitutional solely because it results in a racially disproportionate impact,’’ and that, ‘‘proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause’’ Arlington Heights v. Metropolitan Housing Development Corporation (1977).

The next issue of constitutional and social significance was whether discrimination against a racial majority should be treated the same as discrimination against a disadvantaged racial minority? Many state programs voluntarily attempted to offer ‘‘Affirmative Action’’ to remedy the past discrimination suffered by disadvantaged racial minorities. Although it hardly seems odious for a racial majority to discriminate against itself, the concept of discriminating against the majority stirred extensive political controversy. Given such, the standard of review to be applied by the Court was contentiously debated Regents of The University Of California v. Bakke (1978).

By 1995, the Court definitively resolved this issue and held, ‘‘that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.’’ Yet, this was not a compelling purpose test that was always ‘‘fatal in fact.’’ For a state could constitutionally advance Affirmative Action programs if such classifications were, ‘‘narrowly tailored measures that further compelling governmental interests’’ Adarand Constructors, Inc v. Pena (1995).

To be ‘‘narrowed tailored’’ and constitutional the Court has indicated that the program must not just remedy the general nature of past societal discrimination but be supported by facts that ‘‘identify prior discrimination’’ in the area challenged. In City of Richmond v. Croson (1989), for example, this meant a history of identified discrimination in the Richmond construction industry itself. In the 2003 term, in Grutter v. Bollinger, the Court reaffirmed the Bakke decision and held that a law school’s admission program that favored racial minority candidates to further the goal of ‘‘diversity’’ was constitutional. This was the case because the program was narrowly tailored in that it did not, ‘‘unduly burden individuals who are not members of the favored racial and ethnic groups,’’ and, ‘‘because the Law School considers ’’all pertinent elements of diversity,‘‘ it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants.’’

The Supreme Court has also included classifications based on ‘‘religion and national origin’’ as inherently suspect and requiring application of strict scrutiny. The Court in Bernal v. Fainter (1984), made this clear in holding that ‘‘a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny.’’ The Court cited to a ‘‘narrow exception’’ to this rule that has been labeled the ‘‘political function’’ exception and applies to laws that exclude aliens from ‘‘positions intimately related to the process of democratic self-government.’’

Fundamental Rights

The second conduit to the application of strict scrutiny under equal protection analysis is rights that are deemed fundamental. When a fundamental federal right is denied, strict scrutiny is applied no matter what the discriminatory classification. Thus, although deference is applied to wealth-based classifications, strict scrutiny will be applied if a fundamental federal right is denied to the poor as against the wealthy.

This makes a determination of what rights are deemed fundamental of consequence. With ‘‘explicit’’ constitutional rights most likely deemed ‘‘fundamental,’’ the more particularized issue is once again what nonarticulated rights are deemed fundamental as well. Despite the inherent controversy of this process, the fact that a right to vote is not expressly articulated in the Constitution and is most certainly necessary for the democratic government mandated by the document makes it almost impossible not to conclude that there are ‘‘implicit, nonarticulated’’ fundamental rights. Just as our discussion concerning the ‘‘implicit’’ fundamental right of privacy, so we now make a similar inquiry as to other such rights.

The Supreme Court’s conclusion that education was not a fundamental right in San Antonio Independent School District v. Rodriguez in 1973 articulated reluctance on behalf of the Court to expand implicit fundamental rights. The Court’s conclusion in Rodriquez that only rights ‘‘explicit and implicitly’’ in the Constitution could be deemed fundamental was, in fact, quite limiting in nature. The conclusion that education was not such a right, and the history since the opinion, indicates the Court’s reluctance to expand implicit fundamental rights.

Beyond the explicit detailing of rights in the Constitution, most notably, of course, the Bill of Rights, the following implicit rights have been deemed fundamental and subject to strict judicial scrutiny: vote, privacy, access to courts, and the right to interstate travel.

Heightened Review: The Middle Scrutiny Test

Although the Constitution hasn’t changed, the role of women in our society certainly has. Whatever individual justices might have to say about a ‘‘living constitution,’’ in Craig v. Boren in 1975, the Supreme Court retuned its positional analysis when it came to genderbased discrimination. The Court revolutionized its ‘‘two-prong’’ method and gave birth to ‘‘middle scrutiny’’ or heightened review when it came to gender. Under this increased scrutiny of gender-based classification, the Court held that ‘‘[To] withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.’’ As opposed to a legitimate governmental objective, the objective must now be ‘‘important,’’ and not just rationally related to its ends, but ‘‘substantially.’’

The Court has, since Boren, continued to emphasize this increased scrutiny when it comes to gender. They have put state legislatures on notice that any gender-based classifications ‘‘must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions’’ Mississippi University for Women v. Hogen (1982). The Court now references the application of middle scrutiny as requiring an ‘‘exceedingly persuasive justification’’ for any gender- based classification. It has described its review as’’skeptical scrutiny,’’ rejecting ‘‘overbroad generalizations about the different talents, capacities, or preferences of males and females’’ that ‘‘perpetuate the legal, social, and economic inferiority of women’’ J.E.B. v. Alabama (1994). Gender today finds the Supreme Court applying a heightened review that is very close to strict scrutiny.

The application of middle scrutiny review has not been limited to gender. In Clark v. Jeter (1988), after some confusion in previous cases, the Court indicated that ‘‘intermediate scrutiny’’ would be applied to any state classification of nonmarital children. The Court has also applied intermediate scrutiny on a caseby- case basis when the nature of the facts may require such. Thus, in Plyler v. Doe (1982), the Court found Texas’ denial of an education to children who had not been legally admitted into the United States an unconstitutional denial of equal protection, noting the ‘‘discrete’’ nature and ‘‘innocence’’ of the children and carefully limiting the application of middle scrutiny to the facts at hand.

The Enforcement Power

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Finally, and of particular significance given the framers intent of adopting the Fourteenth Amendment to support the constitutionality of post-war civil rights legislation, the Framers granted to Congress the ‘‘power to enforce, by appropriate legislation, the provisions of this article.’’ The post-war Congress exercised their enforcement power to adopt legislation that is significant even until today. Notable among this legislation are two statutes offering federal criminal protection: 18 U.S.C. } 241 (Derived from } 6 of the 1870 Act): Conspiracy against rights; 18 U.S.C. } 242 (Derived from } 2 of the 1866 Act); Deprivation of rights under color of law; and their civil law counterparts: 42 U.S.C. } 1983 (Derived from } 1 of the Civil Rights Act of 1871): Civil action for deprivation of rights.; 42 U.S.C. } 1985(3) (Derived from Civil Rights Act of 1871): Conspiracy to interfere with civil rights. Section 1983’s deprivation of fundamental rights under color of law has been a major source of litigation in the modern era, because it can be used to protect against the deprivation of all rights protected by the Fourteenth Amendment. This is quite expansive given that most of the Bill of Rights is incorporated by means of the Amendment.

Although most all of this legislation was ‘‘remedial’’ in character, the dominant issue in regard to the enforcement power is whether or not Congress could substantively enforce the Amendment to reach beyond the Court’s own definitions of the Amendment’s clauses. The first arguments that surfaced addressed whether or not Congress could reach private activity that the Court held the Amendment itself could not (the state action limitation). Although the fact that Section 241 and its civil parallel, Section 1985, seems to address private activity, and despite affirmative nuances by the Warren Court, the Court has essentially settled this question in the negative, and the Fourteenth Amendment’s enforcement has been limited to at least some involvement of the state, or state action.

Within the same context, the issue as to whether or not Congress can extend the substantive reach of the Amendment, based on its enforcement power, has also generated much debate. In reviewing one of the most significant pieces of civil rights legislation, the Voting Rights Act of 1965, the Warren Court affirmed its sweeping mandate that extended well beyond the Court’s own interpretation of Section 1 Katzenbach v. Morgan (1966).

But by the late twentieth century, the Rehnquist Court ‘‘put the brakes’’ on the Katzenbach rationale in finding that the Court could not modify substantive rights City of Boerne v. Flores 1997. Although they would conclude that Congress could abrogate the states Eleventh Amendment immunity from suit by the enforcement clause, they nonetheless scrutinized congressional purpose and limited legislation to remedies that were ‘‘proportional and congruent’’ to the alleged discrimination United States v. Morrison (2000). In fact, as if to make its point in regard to limits on the modern enforcement power, the Court held that in areas where the Court itself provided a higher degree of scrutiny (gender, fundamental rights), they would allow Congress greater leeway in legislating under its enforcement power Nevada Department of Human Resources v. Hibbs (2003), Tennessee v. Lane (2004).

MARTIN L. LEVY

References and Further Reading

• Amar, The Bill of Rights and the Fourteenth Amendment, Yale Law Journal 101 (1992): 1193.
• The American Heritage Dictionary of the English Language. 4th Ed. 2003.
• Charles and Mary Beard. The Rise of American Civilization. 2 vols. 1927.
• Corwin, E. The Constitution of the United States of America 965, 1953.
• Currie, The Constitution in the Supreme Court: Limitations on State Power, 1865–1873, University of Chicago Law Review 51 (1983): 329, 348.
• Ely. Democracy and Distrust. 18, 1980.
• Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, Stanford Law Review 2 (1949): 5, 132, 137–139.
• Graham, Our ‘‘Declaratory’’ Fourteenth Amendment, Stanford Law Review 7 (1954): 3, 23, 25.
• Reich. ‘‘The New Property.’’ Yale U. 73 (1964): 733.
• Tribe, L. American Constitutional Law. 1978.
• Tussman and tenBroek, The Equal Protection of the Laws, California Law Review 37 (1949): 341.

Cases and Statutes Cited

• Adamson v. California, 332 U.S. 46 (1947)
• Adarand Constructors, Inc v. Pena, 515 U.S. 200 (1995)
• Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)
• Barron v. Baltimore, 32 U.S. 243 (1833)
• Bernal v. Fainter, 467 U.S. 216 (1984)
• Board of Regents v. Roth, 408 U.S. 564 (1972)
• Brown v. Board of Education, 47 U.S. 483 (1954)
• Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)
• City of Boerne v. Flores, 521 U.S. (1997)
• City of Richmond v. Croson, 488 U.S. 469 (1989)
• Civil Rights Cases, 109 U.S. 3 (1883)
• Clark v. Jeter, 486 U.S. 456 (1988)
• Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)
• Craig v. Boren, 429 U.S. 190 (1976)
• Dandridge v. Williams, 397 U.S. 471 (1970)
• Dred Scott v. Sanford, 60 U.S. 393 (1856)
• Duncan v. Louisiana, 391 U.S. 145 (1968)
• Flagg Brothers v. Brooks, 436 U.S. 149 (1978)
• Gitlow v. New York, 268 U.S. 652 (1925)
• Goldberg v. Kelly, 397 U.S. 254 (1970)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Grutter v. Bollinger, 1236 S. Crt. 2325 (2003)
• Jackson v. Metropolitan Edison Company, 419 U.S. 345 (1974)
• J.E.B. v. Alabama, 511 U.S. 127 (1994)
• Katzenbach v. Morgan, 984 U.S. 641 (1966)
• Lockner v. New York, 198 U.S. 45 (1905)
• Lugar v. Edmondson, 457 U.S. 922 (1982)
• Mathews v. Eldridge, 424 U.S. 319 (1976)
• Mississippi University For Women V. Hogen, 458 U.S. 718 (1982)
• Moore v. East Cleveland, 431 U.S. 494 (1977)
• Moose Lodge v. Irivs, 407 U.S. 163 (1972)
• Nevada Department of Human Resources v. Hibbs, 528 U.S. 721 (2003)
• Palko v. Connecticut, 302 U.S. 319 (1937)
• Paul v. Davis, 424 U.S. 693. (1976)
• Planned Parenthood v. Casey, 505 U.S. 833 (1992)
• Plessy v. Ferguson, 163 U.S. 537 (1896)
• Plyler v. Doe, 457 U.S. 202 (1982)
• Regents of The University Of California v. Bakke, 438 U.S. 265 (1978)
• Roe v. Wade, 410 U.S. 113 (1973)
• Romer v. Evans (1996), 517 U.S. 620 (1996)
• San Antonio Independent School District V. Rodriguez, 411 U.S. 1 (1973)
• Slaughter-House Cases, 83 U.S. 36 1872)
• Strauder v. West Virginia, 100 U.S. 303 (1880)
• Tennessee v. Lane, 124 S.Crt. 1978 (2004) T
• wining v. State of N.J., 211 U.S. 78 (1908)
• United States v. Morrison 529 U.S. 598 (2000)
• Washington v. Davis, 426 U.S. 229 (1976)
• Williamson v. Lee Optical, 348 U.S. 483 (1955)
• Wisconsin v. Constantineau, 400 U.S. 433 (1971)