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Fourteenth Amendment
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[One] major area of expansion of the Fourteenth Amendment was in the application of the Bill of Rights to the states. As early as 1908, in Twining v. New Jersey, the Court suggested that some Bill of Rights guarantees might limit the states through the Due Process Clause. In Gitlow v. New York (1925), the Court began to apply guarantees of speech, press, assembly, religion, and counsel to the states. The guarantees applied to the states were those the Court considered essential to ordered liberty (Palko v. Connecticut, 1937). A majority of the Court thought that many rights in the Bill of Rights—trial by jury and the privilege against selfâ€incrimination, for example—did not meet that test. The incorporation of the Bill of Rights accelerated under the Warren Court.
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Privileges and Immunities: Within five years of its adoption, the privileges and immunities clause of the Fourteenth Amendment was interpreted very narrowly by the U.S. Supreme Court. In In Re Slaughter-House Cases, the Court rejected the argument that the provision gave the federal government broad power to enforce civil rights, finding that to do so would infringe on a power that had and should belong to the states. The Court found that the only privileges protected by the clause are those “which owe their existence to the Federal Government, its National character, its Constitution, or its laws,” all of which are already protected from state interference by the supremacy clause in Article VI. Subsequent cases have recognized several federal privileges such as the right to travel from state to state, the right to petition Congress for a redress of grievances, the right to vote for national officers, and so forth, but other efforts to broaden the meaning of this clause have been rejected.
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The Fourteenth Amendment, ratified in 1868, has generated more lawsuits than any other provision of the U.S. Constitution. Section 1 of the amendment has been the centerpiece of most of this litigation. It makes "[a]ll persons born or naturalized in the United States" citizens of the United States and citizens of the state in which they reside. This section ... prohibits state governments from denying persons within their jurisdiction the "privileges or immunities" of U.S. citizenship, and guarantees to every such person "due process" and "equal protection of the laws." The Supreme Court has ruled that any state law that abridges freedom of speech, freedom of religion, the right to trial by jury, the right to counsel, the right against self-incrimination, the right against unreasonable searches and seizures, or the right against cruel and unusual punishments will be invalidated under section 1 of the Fourteenth Amendment. This holding is called the incorporation doctrine.
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[T]he Fourteenth Amendment speaks of law "enforce[ment]" as well as law making. Once again, this makes perfect sense if its purpose was to incorporate the rights and freedoms of the original Bill. Many of the Bill's provisions, especially those in Amendments V-VIII, dealt centrally with the enforcement of laws by executive and judicial officers. However suggestive the tracking of the First Amendment may be, there is no suggestion ... far that only the First Amendment is to be incorporated.
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Before the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States. In 1857, the Dred Scott v. Sanford decision had held that no black of African descent (even a freed black) could be a citizen of the United States. The Fourteenth Amendment was ... necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves. The Fourteenth Amendment made United States citizenship primary and state citizenship derivative. The primacy of federal citizenship made it impossible for states to prevent former slaves from becoming United States citizens by withholding state citizenship. States could no longer prevent any black from United States citizenship or from state citizenship either.
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African Americans have gone from being three-fifths of a man in the U.S. Constitution, to citizenship, to guaranteed equality by the Fourteenth Amendment, to pigmentation prejudice better known as Racial Profiling. Racial Profiling has affected African Americans in every area of their lives. These areas include:
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Fourteenth Amendment