Background Section 1 of the Fourteenth Amendment formally defines
United States citizenship and protects various
civil rights from being abridged or denied by any
state law or
state action. In
Shelley v. Kraemer (1948), the Supreme Court held that the Fourteenth Amendment's historical context of countering the discriminatory
Black Codes of southern states must be used in its interpretation. Primarily written by Representative
John Bingham, Section 1 is the most frequently litigated part of the amendment, and this amendment is the most frequently litigated part of the Constitution.
Citizenship Clause of
Michigan, author of the
Citizenship Clause The
Citizenship Clause overruled the Supreme Court's
Dred Scott decision that African Americans could not become citizens. The clause constitutionalized the
Civil Rights Act of 1866's grant of citizenship to all born within the United States, except the children of foreign diplomats. Compared against European
jus sanguinis laws that assign citizenship by one's parents, historians have framed the United States' Citizenship Clause as an extension of the Fourteenth Amendment's egalitarian principles. Congress's debate over the Citizenship Clause shows explicit rejection of Senator
Edgar Cowan's
anti-Romani sentiment, affirming that birthright citizenship cannot be revoked from children born to disfavored ethnic minorities. Birthright citizenship was meant to repudiate the
American Colonization Society's repatriation of
freeborn people of color and
emancipated slaves to Africa. In
United States v. Wong Kim Ark (1898), the Supreme Court confirmed that children born in the United States receive birthright citizenship, regardless of whether their parents are non-citizen immigrants. In
Elk v. Wilkins (1884), the Supreme Court interpreted the Citizenship Clause as granting
birthright citizenship to all born within the jurisdiction of the United States and allowing Congress to establish alternative
pathways for naturalization. Consistent with the views of the clause's author, Senator
Jacob M. Howard, the Supreme Court held that because
Indian reservations are not under the federal government's jurisdiction, Native Americans born on such land are not entitled to birthright citizenship. The 1887
Dawes Act offered citizenship to Native Americans who accepted
private property as part of
cultural assimilation, while the 1924
Indian Citizenship Act offered citizenship to all Native Americans born within the nation's
territorial limits. In
Mackenzie v. Hare (1915), the Supreme Court upheld the
Expatriation Act of 1907, which dictated that all American women who voluntarily married a
foreign alien renounced their American citizenship.
Perez v. Brownell (1958) similarly held that Congress could designate voting in foreign elections or
draft evasion as renunciations of citizenship. However, in
Afroyim v. Rusk (1967) and
Vance v. Terrazas (1980), the Supreme Court reversed itself, holding that renunciations of American citizenship must be formally expressed. In
Rogers v. Bellei (1971), the Supreme Court distinguished between citizenship conferred by the Fourteenth Amendment and citizenship conferred by
Article I, holding that a person who did not acquire citizenship by
jus soli or by naturalization, but instead acquired citizenship at birth abroad through
jus sanguinis, could later be involuntarily expatriated. In January 2025, President
Donald Trump issued
Executive Order 14160 to deny birthright citizenship to children with parents of
illegal or
temporary immigration status. While this topic was not considered by the 39th Congress, nor has it been addressed by the Supreme Court, enforcement of the executive order has been blocked as unconstitutional by multiple federal judges. Furthermore, many of the freed slaves whose children were covered by the Citizenship Clause were illegal immigrants brought in violation of the 1807
Act Prohibiting Importation of Slaves.
Privileges or Immunities Clause The
Privileges or Immunities Clause was written to provide
congressional power of enforcement to the similar
Privileges and Immunities Clause of
Article Four of the Constitution. In 1823, Justice
Bushrod Washington decided
Corfield v. Coryell, interpreting the latter clause as protecting the
right to travel, seek
habeas corpus, and hold property in multiple states, among other rights. In the
Slaughter-House Cases (1873), the Supreme Court rejected arguments that the Privileges or Immunities Clause further
incorporated the Bill of Rights against state governments or transferred
police power to the federal government. In
McDonald v. City of Chicago (2010) and
Timbs v. Indiana (2019), Justice
Clarence Thomas advocated moving the incorporation doctrine from
substantive due process, which he called a '
legal fiction', to the Privileges or Immunities Clause.
Due Process Clause The
Due Process Clause of the Fourteenth Amendment explicitly applies the
Fifth Amendment's similar clause to state governments. This reinforcement of due process rights was in response to the
Fugitive Slave Act of 1850 allowing slave owners to recapture their fugitive slaves "without process" and rejecting the testimony of alleged fugitives. In protecting all people against
arbitrary denial of life, liberty, or property, courts have recognized both
procedural and
substantive due process. Procedural due process deals with the processes for restraining life, liberty, or property, such as the
right to be notified of a
hearing by a
neutral decision-maker. In comparison, substantive due process involves the government's justification for engaging in those processes. In deciding whether legislation unconstitutionally infringes on one's liberty, most government acts are subject to
rational basis review, under which the government must present a legitimate
state interest and the law must be rationally related to advancing that interest. When the government infringes on fundamental rights, such as
racial equality,
strict scrutiny requires its actions to instead be narrowly tailored to address a compelling state interest. The early 20th century has been referred to as the
Lochner era for the Supreme Court's embrace of a
freedom of contract in cases like
Allgeyer v. Louisiana (1897) and
Lochner v. New York (1905). While that freedom was ultimately curtailed in
West Coast Hotel Co. v. Parrish (1937), those early cases recognized substantive due process rights within the Due Process Clause. For example,
Meyer v. Nebraska (1923) and
Pierce v. Society of Sisters (1925) struck down anti-immigrant state education laws as violations of substantive due process. While the article only advocated for
tort actions to protect one's privacy, the Supreme Court later elevated
privacy to a fundamental right, protecting
contraceptive sales in
Griswold v. Connecticut (1965),
consensual sex in
Lawrence v. Texas (2003), and
same-sex marriage in
Obergefell v. Hodges under substantive due process. In
Roe v. Wade (1973), the Supreme Court recognized a substantive due process
right to abortion, but that holding was overturned in ''
Dobbs v. Jackson Women's Health Organization'' (2022), which stated that "a right to abortion is not deeply rooted in the Nation's history and traditions."
Incorporation of the Bill of Rights Prior to the Fourteenth Amendment, the Supreme Court held in
Barron v. Baltimore (1833) that the Bill of Rights only restrained the federal government. However, in
Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), the Supreme Court applied the
Fifth Amendment's Takings Clause to the
eminent domain power of state governments under the Due Process Clause, beginning an ongoing process of incorporation. Legal scholar
Akhil Reed Amar has argued that while Congress intended the Fourteenth Amendment to reverse the
Barron decision, Representative Bingham expected incorporation to rely on the Privileges or Immunities Clause. The Supreme Court has explicitly rejected incorporation of the Fifth Amendment's Grand Jury Clause and
Seventh Amendment, and it has never addressed the
Third Amendment.
Equal Protection Clause of Ohio was the principal author of the Equal Protection Clause. The
Equal Protection Clause was written to constitutionalize the
anti-discrimination principles of the
Civil Rights Act of 1866 and prevent enforcement of the southern states'
Black Codes. In
Strauder v. West Virginia (1880), the Supreme Court recognized exclusion of African Americans from
West Virginian
juries as an unconstitutional infringement of this clause, triggering the 1866 law's provision to remove the underlying case to federal court. In
Yick Wo v. Hopkins (1886), the Supreme Court clarified that race-neutral laws administered in discriminatory ways were similarly unconstitutional. Whereas the
Privileges or Immunities Clause refers to citizens, this clause refers to all people within the jurisdiction of the United States. Accordingly, in
Plyler v. Doe (1982), the Supreme Court prohibited state governments from restricting
public education on the basis of a child's immigration status. In that decision, Justice
William J. Brennan Jr. noted that in
Wong Wing v. United States (1896), the Supreme Court had already recognized illegal immigrants as within American jurisdiction for the purposes of
due process rights. While the Fourteenth Amendment's
Due Process Clause incorporates the Bill of Rights against state governments, the Fifth Amendment's similar clause has been used for
reverse incorporation of the Equal Protection Clause against the federal government. In
Bolling v. Sharpe (1954), the Supreme Court used this doctrine to prevent the federal government from maintaining
segregated public schools in Washington, D.C. While states can vary taxation by the taxpayer's profession or form of their property, the Equal Protection Clause restrains the government from engaging in discriminatory
tax assessment. Additionally, in
Metropolitan Life Insurance Co. v. Ward (1985), the Supreme Court treated the Equal Protection Clause as affirming the
Dormant Commerce Clause doctrine against state
protectionism. In
Santa Clara County v. Southern Pacific Railroad Co. (1886),
Supreme Court Reporter of Decisions Bancroft Davis affirmed
corporate personhood in the decision's
headnote without full discussion by the court. In
Minneapolis & St. Louis Railway Co. v. Beckwith (1889), the Supreme Court fully embraced this treatment of businesses as people. served as chief counsel in the landmark Fourteenth Amendment decision
Brown v. Board of Education (1954). In
Plessy v. Ferguson (1896), the Supreme Court held that
racial segregation laws did not violate the Equal Protection Clause, and in
Cumming v. Richmond County Board of Education (1899), it applied its "
separate but equal" doctrine to uphold racial segregation in
public schools. Through civil rights litigation, groups like the
NAACP weakened this doctrine, culminating in
Brown v. Board of Education (1954) holding segregated facilities to be inherently unequal. The ruling was met with "
massive resistance" in southern states, leading state and federal courts to overturn many segregationist state laws. The Supreme Court clarified in
Hernandez v. Texas (1954) that the Equal Protection Clause applies to all racial groups. In
Reed v. Reed (1971), the Supreme Court unanimously struck down an
Idaho probate law favoring men in its first application of the Equal Protection Clause to
sex discrimination. Responding to
second-wave feminism, the Supreme Court ruled in
Craig v. Boren (1976) that sex classifications would thereafter be subjected to
intermediate scrutiny. The Supreme Court ruled in
Regents of the University of California v. Bakke (1978) that diverse student bodies were a
compelling interest for universities while deeming
racial quotas in
public university admissions unconstitutional. In the 2003
companion cases
Gratz v. Bollinger and
Grutter v. Bollinger, the Court continued to accept race-conscious admissions while striking down a points-based system that quantified minority status. In
Students for Fair Admissions v. Harvard (2023), the Supreme Court effectively overturned that precedent, declaring
affirmative action unconstitutional in private universities that accept federal funds and all public universities except
military academies. With the 1964 cases
Wesberry v. Sanders and
Reynolds v. Sims, the Supreme Court embraced a "
one man, one vote" approach to apportioning congressional districts. While
racial gerrymandering was held illegal in
Shaw v. Reno (1993),
partisan gerrymandering was deemed a
political question in
Rucho v. Common Cause (2019). In
Bush v. Gore (2000), the Supreme Court required states to impose uniform ballot counting procedures across their counties under the Equal Protection Clause. Deeming a complete recount of the
2000 presidential election in Florida impractical, the Supreme Court accepted the
Florida Secretary of State's prior vote certification, allowing
George W. Bush to win the
Electoral College.
State actor doctrine The
Eleventh Amendment provides state governments with
sovereign immunity from federal lawsuits brought by citizens of other states, and in
Hans v. Louisiana (1890), the Supreme Court held that it implies immunity from all lawsuits brought by private parties. In
Fitzpatrick v. Bitzer (1976), the Supreme Court determined that Section 5 of the Fourteenth Amendment's
congressional power of enforcement allows the federal government to limit state sovereign immunity. Furthermore, in
Ex parte Young (1908), the Supreme Court held that private individuals could seek federal
injunctions against state officials to prevent enforcement of unconstitutional laws, reasoning that unconstitutional conduct can never be a protected
state action. Similarly, in
Shelley v. Kraemer (1948), the Supreme Court held that while the federal government cannot prevent private parties from establishing racially discriminatory
housing covenants, state and federal courts cannot enforce them. In cases like
Jackson v. Metropolitan Edison Co. (1974) and
Flagg Bros., Inc. v. Brooks (1978), the Supreme Court clarified that state laws do not transform regulated businesses into state actors. Thus, private companies are free to engage in conduct that would be unconstitutional for state governments to pursue, though the federal government can prevent discriminatory private conduct under its
Commerce Clause authority, and state governments may further regulate business operations. ==Section 2: Apportionment of representatives==