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The 14th Amendment works hard to protect your freedoms

August 4, 2018

On July 28, 1868, Secretary of State William Seward announced that the 14th Amendment to the U.S. Constitution had been ratified. The 14th Amendment is, despite its late addition to the Constitution after the Civil War, a foundational document of our republic. Its mandate speaks to our highest ideals.

Section 1 of that amendment reads:

“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.”

Note the language of the equal protection and due process clauses. Unlike the first half of Section 1, these clauses do not deal with citizenship. Due process and equal protection are not guaranteed not to any citizen, but to “any person” within any state’s jurisdiction. This was intentional, as Sen. Jacob Howard, floor manager of the amendment when it was before the U.S. Senate, made clear as it was debated.

The Supreme Court affirmed this reading of the young amendment as early as 1886 in Yick Wo v. Hopkins, holding for the first of many times that the 14th Amendment protects everyone, not just citizens. The due process and equal protection guarantees therefore belong to a category of rights beyond the civil and political. They are human rights that every level of government is bound to respect.

Note also where this amendment directs its commands. Unlike the Bill of Rights, which (as originally designed) restrained only the power of the federal government, the 14th Amendment specifically restrains the states themselves. After this amendment (and many court decisions construing it), our constitutional rights were protected not only from federal interference but also from the interference of the states.

The 14th Amendment’s important guarantees, and the breadth of its language, have caused it to be one of the most controversial amendments. As a result, it has generated more than its share of important court decisions.

The Supreme Court applied the 14th Amendment to rule against segregation of public schools in 1954′s Brown v. Board of Education. In 1965, the court struck down a Connecticut law banning the use of contraceptives in light of the 14th Amendment.

In 1973′s Frontiero s. Richardson, faced with a law that forced a woman in the military to prove her husband’s dependence on her when no such requirement was placed on a man designating his wife as a dependent, the Supreme Court found that the 14th Amendment meant that “any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience ... involves the very kind of arbitrary legislative choice forbidden by the Constitution.”

Because of the 14th Amendment, no state can impose undue restraint on a woman’s right to choose, or forbid consensual sex between adults of the same gender. Because of the 14th Amendment, voting districts must be drawn so that they have relatively equal populations, and racially motivated gerrymandering is prohibited.

Because of the 14th Amendment, we each have the right to counsel before state as well as federal tribunals, we are protected from unreasonable search and seizure by state as well as federal agents, and we are entitled to a trial by jury in serious criminal cases in state courts. These are just a few of the many substantive and procedural protections the 14th Amendment secured for all Americans.

One of those closest to my heart is the right recognized by the Supreme Court on June 26, 2015, in Obergefell v. Hodges, which reads, in part:

“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. ... No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. ... Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

A few weeks after that ruling, my husband and I availed ourselves of that right.

The 14th Amendment, along with its close kin the 13th and 15th Amendments, which banned slavery and prohibited racial discrimination regarding the right to vote, respectively, was a big step toward the goal first announced in 1776 of a republic that recognized that all are created equal and that governments are created to protect and advance the rights we all possess.

Certainly there is much work still to do on both fronts. But I encourage you to take a moment to appreciate the progress the 14th Amendment has made possible, and to consider how privileged we are to live in a nation that enshrines such high ideals in its highest body of law.

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