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| | ===14th Amendment=== | | ===14th Amendment=== |
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| − | The 14th Amendment is a broadly worded and expansively interpreted amendment that has been used by the U.S. Supreme Court to invent new "rights", such as abortion. Now the 14th Amendment is being used to try to establish a "right" to same-sex marriage. | + | The 14th Amendment is the most important Amendment after the Bill of Rights. The 14th Amendment was passed after the Civil War to prohibit discrimination by the southern States against the former slaves. '''''The 14th Amendment is directed against the States, and prohibits State laws from discriminating or violating other constitutional rights'''''. |
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| − | The 14th Amendment was originally intended to end discrimination by the States against African Americans after the Civil War. But later the U.S. Supreme Court used the broad language of the 14th Amendment to invalidate other State laws that have nothing to do with discrimination. This became known as "incorporation doctrine": the Supreme Court uses broad language in the 14th Amendment to "incorporate" the Bill of Rights and apply them against the States. Today nearly every claim that a State law is unconstitutional is based on the 14th Amendment itself, or on incorporation doctrine that the 14th Amendment applies the Bill of Rights against the State.
| + | There are three important aspects of the 14th Amendment: |
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| − | The 14th Amendment is used in a direct way to prohibit discrimination by State and local governments based on race (ethnicity). States cannot refuse to grant a driver's license to someone because of the color of his skin, for example. Government cannot segregate public schools by race (as held in by the U.S. Supreme Court in ''Brown v. Board of Education'' (1954)), or impose any other conditions based on race. This is because of the "Equal Protection Clause" in the 14th Amendment.
| + | *its Equal Protection Clause |
| | + | *the "incorporation doctrine" |
| | + | *its Due Process Clause |
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| − | The Equal Protection Clause prohibits non-racial forms of discrimination too, such as requiring an all-male military college (VMI) to admit women too, or treating foreigners who are in this Nation lawfully differently from Americans who were born here. But while government cannot treat people differently based on race, government is allowed to have a few differences based on gender because the Equal Rights Amendment never became part of the U.S. Constitution. For example, the military can have a men-only military draft. But the military could not draft whites without also drafting blacks, because discrimination by government based on race is never allowed.
| + | Let's look at each aspect carefully next. |
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| − | But racial discrimination is a small percentage of the issues raised under the 14th Amendment today. Beginning with the liberal "Warren Court" (led by Chief Justice Earl Warren) in the 1950s, the U.S. Supreme Court began using the 14th Amendment to create new rights never before thought to be in the U.S. Constitution. The Warren Court ended when Chief Justice Earl Warren retired in 1969, but its decisions provided the basis for ''Roe v. Wade'' on January 22, 1973, which created a new constitutional "right" to abortion nationwide. The March for Life has been held in D.C. every year since in protest against that ruling.
| + | ==== Equal Protection Clause==== |
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| − | The 14th Amendment has been used to create rights of "due process" when dealing with government, which makes it more difficult for government to fire a bad employee. | + | The Equal Protection Clause of the 14th Amendment states: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." That means any law which treats people differently based on their race (skin color) is unconstitutional and cannot be applied. For example, it is illegal for public schools to segregate students based on their race. The U.S. Supreme Court ended segregation in public schools in ''Brown v. Board of Education'' (1954)). |
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| − | What is "due process"? It means the "process that is due" -- procedures to protect against an unjust result. These include advance notice that the government is going to take an action against someone, and an opportunity to be heard in order to object to that action. "Due process" can also include the right to use an attorney to argue your case for you, and the right to call witnesses and ask them questions.
| + | The Equal Protection Clause prohibits forms of unequal treatment by government also. The Supreme Court, applying the 14th Amendment, ordered the all-male Virginia Military Institute (VMI) to admit women. But because the Equal Rights Amendment never passed, not all government laws treating men and women differently are unconstitutional. For example, the military can have a men-only military draft. But the military could not draft whites without also drafting blacks, because discrimination by government based on race is '''''never''''' allowed. "Strict scrutiny" is the legal standard that applies to any discrimination by government based on race. |
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| − | For example, if government is going to try to take your property away from you (as in "eminent domain," when it takes private property to build a new highway), then it must give you prior notice and a hearing at which you have an opportunity to be heard and can have an attorney call witnesses and question them. The Fifth Amendment requires the government to pay you "just compensation" if it does take your property, and "due process" entitles you to a hearing about what the amount of compensation should be.
| + | Notice the "by government." The 14th Amendment applies only to government. The 14th Amendment does not apply to private individuals, clubs, churches, sports teams, homeschooling, etc. Major League Baseball excluded blacks until after World War II, for example, and the 14 Amendment says nothing about that. But other laws prohibit discrimination by places of public accommodation, such as hotels and restaurants. And the New Jersey Law Against Discrimination is the strongest in the nation in prohibit discrimination far beyond what the 14th Amendment prohibits. |
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| | + | The Equal Protection Clause is used today to seek constitutional rights beyond issues of racial and gender discrimination. Gays seek a right to marry under the Equal Protection Clause, by claiming they are discriminated against in violation of this Clause when a State (such as New Jersey) does not allow same-sex marriage. Many of these cases are headed to the U.S. Supreme Court for final resolution. |
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| | + | ===="Incorporation Doctrine"==== |
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| | + | Like the Free Speech Clause, Courts have repeatedly expanded the scope of the 14th Amendment. "Incorporation doctrine" is an example reason. It is a doctrine invented by the U.S. Supreme Court to "incorporate" the Bill of Rights into the 14th Amendment, and thereby apply the Bill of Rights against the States. Recall that the Bill of Rights were originally intended to apply only against the federal government. |
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| | + | The 14th Amendment has been interpreted to incorporate the Bill of Rights. Today most claims that a State law is unconstitutional is based on "incorporation doctrine": the Bill of Rights as "incorporated" into the 14th Amendment |
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| | + | ===="Due Process Clause"==== |
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| | + | The Equal Protection Clause of the 14th Amendment states: "No state shall ... deprive any person of life, liberty, or property, without due process of law." |
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| | + | This clause has been used by the U.S. Supreme Court to create two types of rights: procedural and substantive. |
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| | + | The procedural rights consist of '''''legal process''''': prior notice of a legal hearing, a right to be heard, a right to have your attorney there, a right to call and cross-examine witnesses, a right to a decision with reasons, etc. When the government takes away your property ("eminent domain"), fires you from a government job, or takes some other time of formal action, you have a right to "due process" under the 14th Amendment. This is a logical extension of what the 14th Amendment says. |
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| | + | The creation of "substantive" due process rights created by the U.S. Supreme Court is not a logical extension of what the 14th Amendment says. But this is how the Supreme Court created a new "right" to abortion. In ''Roe v. Wade'' (Jan. 22, 1973), the Court held that the Due Process Clause, combined with incorporation doctrine, invalidates all State laws prohibiting abortion. You can read the Constitution 100 times and there will still not be any mention of abortion in it, but the U.S. Supreme Court, by a 7-2 vote, declared that there is a constitutional right to abortion. This is an example of "judicial activism," where the Court when beyond merely interpreting the law, in order to create a new law. Over the years, the 7 votes in support of abortion on the U.S. Supreme Court has declined to only 4 or 5 votes, and many expect that eventually the Court will overturn the ''Roe v. Wade'' decision. If that happens, then States could again limit and prohibit abortion, as they had done prior to 1973. |
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| | ===15th Amendment=== | | ===15th Amendment=== |