Judicial Interpretation of Due Process
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Session 15 – Tuesday, April 6
Topic: Judicial Interpretation of Due Process & Equal Protection Clauses – Part 1
The “post Civil War” Amendments are the 13th, 14th, and 15th Amendments. My main focus for this week is on the 14th Amendment but it won’t take long to cover the 13th Amendment too. The 15th Amendment will also be discussed during this session.
Many confuse these three because they were all created in response to slavery, the concept of states’ rights as applied to slavery, and the racial bias that caused and allowed slavery. But the ways in which these three Amendments operate are very different.
The 14th Amendment is important and very complex to understand. The 13th and 15th Amendments are also very important but not as complex. When it comes to law, complexity does not always signify more importance. Important laws may not always be complex to understand. The 13th Amendment is one of the most important protections that we have but it is also one of the easier ones to understand so we do not need to spend as much time discussing it. It is more straight forward in its interpretation.
However, the Judiciary has evolved its interpretation and application of the sizeable 14th Amendment more than just about any other part of the Constitution. That is a bold statement and is made bolder by the fact that the 14th Amendment was introduced 100 years after the Constitution was even ratified. The first 10 Amendments and the original Articles of the Constitution have a “100-year head start” on the 14th Amendment. However, there isn’t one Article or Amendment that has been debated as much or interpreted as differently over the years as the 14th Amendment has.
We have mentioned the 14th Amendment in the past because it has been very influential as well as important. The Judiciary has interpreted it in ways that have affected their usage of other Amendments. For example, the interpretation of the 14th Amendment caused the Courts to expand their usage of the 5th Amendment by essentially adding the “Equal Protection” section of the 14th Amendment which we’ll discuss later. Even the interpretation of the 1st Amendment has been affected by the principles of scrutiny which were created by the Judiciary to understand and apply the 14th Amendment to cases.
Of course, that complexity and influence does not mean that the 14th Amendment is more important than any other Amendment: including the 13th or 15th Amendments. It just means that it takes longer to understand the way that the Courts choose to interpret and apply the 14th Amendment. It’s also tremendously important for the concept of civil rights and civil liberties based on how often it is used by courts in this area of law.
Let’s start from the beginning. The 14th Amendment does not have the same legal significance if you don’t have history and the 13th Amendment leading the way.
13th Amendment:
- Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 2. Congress shall have power to enforce this article by appropriate legislation.
The 13th Amendment was crucial. Without it, the 14th and 15th would not have been able to work for those who were primarily intended to be protected. For example, look at the language of the 15th Amendment and consider how important the 13th Amendment is:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”
That does not have the same effect without the 13th Amendment initially ending that “previous condition of servitude.” The 13th Amendment was intended to apply to everyone and does apply to everyone in the U.S. But the primary reason for the creation of this Amendment was to provide African Americans the freedom that was previously denied to them by slavery. The 13th Amendment was first needed to grant them freedom before the other two Amendments granted them additional rights and liberties.
There is some common law interpreting the 13th Amendment but not as much as other Amendments including the 14th and 15th. The Courts have not treated the 13th Amendment as having significant room for alternate interpretation or application. The 13th Amendment clearly abolished slavery and anything resembling slavery.
However, there is still debate over the section about punishment. Specifically, this stated that that people can still be imprisoned as punishment after being properly convicted of committing a crime. This section was put here to ensure that imprisonment is not considered slavery by the law and banned as a practice across the country.
To some, this is not a significant loophole as it just protects a legitimate government power of imprisonment which the 13th Amendment was not meant to dismantle in any way. They say that the idea of imprisonment clearly existed before slavery and it’s difficult for the government to enforce the law without placing people in jail. Certainly, Locke acknowledged that a power of punishment is necessary for rights to be protected.
However, this is seen as a wide loophole for those who see the United States having a justice system run with discriminatory intention and discriminatory execution. If your 4th Amendment rights have been violated as a result of racial bias and the Judiciary does not come to your assistance, then the 13th Amendment loophole directly affects you. There are even some that say the fact this exception is placed in this Amendment was a signal that that the justice system could be taken over to provide similar results as slavery.
This is an issue that goes broader than the 13th Amendment. Even if slavery had never been legal in the country, imprisonment is common for most legal systems. And if the process leading up to the imprisonment is unfair, that is a violation of rights anywhere. But when you consider the historical purpose of the 13th Amendment and the racial tensions of the country today, the question of imprisonment as a direct or indirect violation of the spirit of the 13th Amendment becomes a complex topic of discussion.
Discussion Question: Do you think the language or intent behind the 13th Amendment prohibit imprisonment in the same way that it prevents slavery and involuntary servitude?
Discussion Question: Is imprisonment as punishment for a crime a violation of the 13th Amendment due to the continued existence of racism in the country? If you think that it is, what kind of punishments (if any) would you consider to be justified?
There are a few more interesting aspects about the 13th Amendment as well:
From the perspective of Constitutional law, there are two unique things:
- It applies against everyone and not just the government.
The vast majority of the Constitution only applies against the national and state government. The 13th Amendment is meant to be applied against anyone: including private citizens. That is one way the 13th Amendment stands out from the other post-Civil War Amendments and all the other Amendments and Articles in the Constitution. We’ll talk more about who the Constitution applies against when we discuss the 14th Amendment and the way it was interpreted to apply the Bill of Rights against the states.
- Clause 2 of the 13th Amendment grants Congress power to support it.
“2. Congress shall have power to enforce this article by appropriate legislation.”
This is called the “Enabling Clause” and is an express grant of self-executing power for Congress to enforce the 13th Amendment by allowing them to create “appropriate” legislation. It’s an enforcement mechanism to ensure this Amendment survives. It lets Congress fill loopholes that people find to the 13th Amendment that the Court supports.
This clause is also a philosophical declaration of national power over the states.
Think of the historical and political context leading up to the Civil War. The 10th Amendment and the concept of “states’ rights” were used by states to justify their own laws and customs that they said the national government could not regulate. Although the Civil War ended and the southern states rejoined the union, there was still friction.
The Enabling Clause was made with a specific concern. It was assumed by the drafters of the 13th Amendment that the southern states would try to find loopholes and that some courts would allow them. That was the specific reason the 13th Amendment would need to be enforced by Congress and the national government as a whole.
The phrasing of the Enabling clause is also in the 14th and 15th Amendments. As a result, all three were used a statement of national supremacy against the states as a whole. The Enabling Clause of the 14th Amendment is the legal basis for the Civil Rights Acts. And the Enabling Clause of the 15th Amendment is the legal basis for the Voting Rights Acts.
The limits of the 13th Amendment are not entirely clear. The question of whether the 13th Amendment can prevent discrimination beyond slavery is still unsettled. What we know is that the Judiciary does not currently use the 13th Amendment for that since they use the 14th Amendment and other legislation to fight discrimination. The general language of the 13th Amendment supports the idea that it is limited beyond outlawing slavery.
However, even though the majority of courts do not use the language of Clause 1 of the 13th Amendment to fight discrimination, there has been some cases that have supported the power of the Enabling Clause to do just that. A 1968 case called Jones v. Alfred H. Mayer Co. held that the power established under the Enabling Clause of the 13th Amendment could allow Congressional law to regulate the sale of private property.
The specific statute in question in the case was the Civil Rights Act of 1866 which said:
“All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”
The argument that Justice Stewart made on behalf of the majority was that the Enabling Clause of the 13th Amendment gave Congress the legitimate power to prohibit any private discrimination if they related to “the badges and incidents of slavery.”
Issue of the case: “The constitutional question in this case, therefore, comes to this: does the authority of Congress to enforce the Thirteenth Amendment “by appropriate legislation” include the power to eliminate all racial barriers to the acquisition of real and personal property? We think the answer to that question is plainly yes.
“By its own unaided force and effect,” the Thirteenth Amendment “abolished slavery, and established universal freedom.” Civil Rights Cases, 109 U. S. 3, 109 U. S. 20. Whether or not the Amendment itself did any more than that — a question not involved in this case — it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more.
For that clause clothed “Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”
Justice Stewart is saying that this case is not about the limits of the 13th Amendment and whether or not that Amendment should outlaw discrimination beyond slavery.
However, the language of the Enabling Clause is to:
“2. Congress shall have power to enforce this article by appropriate legislation.”
That is saying that Congress has the power to make laws that appropriately enforce the goal of clause 1 of the 13th Amendment to prevent slavery and involuntary servitude.
Was the Court dodging a necessary question in not answering the limits of clause 1? How can we know whether or not any legislation under Clause 2 is appropriate if we don’t know the limits of Clause 1? Is Justice Stewart correct here in limiting the scope of this case to just the Enabling clause and not the broader purpose of the 13th Amendment?
Discussion Question: Was the Court correct to decide the limits of the Enabling Clause without first deciding the limits of the first clause of the 13th Amendment? Can the limits of the Enabling Clause act independently of the limits for the first clause? As a result, was it correct to say the first clause of the 13th Amendment wasn’t at issue in this case?
What does Justice Stewart mean by “badges and incidents of slavery?” He gives an explanation and a definition that is useful to quote here.
“Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one.
For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery — its “burdens and disabilities” — included restraints upon “those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizen.
“At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.”
Supporters of using the 13th Amendment to prevent discrimination have Supreme Court precedent that is not overturned. However, that precedent has also not been relied upon in modern times. When dealing with discrimination that is race-based or otherwise, the Judiciary will treat a 14th Amendment claim as more relevant than a 13th Amendment one.
The 13th Amendment is not used to desegregate schools or make sure restaurants or businesses don’t discriminate in accepting customers and dealing with employees. Even though racial slavery and discrimination arguably have the same roots, the Judiciary has decided that the tools to fight them are different. As the years went on, the Courts began to use the 14th Amendment to combat public racial discrimination and Congress used the Interstate Commerce Clause, the Necessary and Proper Clause, and legislation to combat both public and private racial discrimination. The Civil Rights Acts were also enacted against private discrimination as part of the 14th Amendment enabling clause.
Therefore, if you are looking to use the 13th Amendment to fight discrimination, even if it’s related to the “badges and incidents” of slavery, you may not get very far with the Courts. That isn’t due to the political views of the judges but rather the legal views that the 14th Amendment has been established as the Amendment to fight discrimination.
Discussion Question: Do you think that the “badges and incidents of slavery” argument should allow Congress to have more power than they do under Clause 1 to prevent discrimination? What should be the limit in deciding when discrimination is no longer a “badge or incident” of slavery? Should the 13th Amendment either be amended or interpreted to specifically extend protection against discrimination as well as slavery?
14th Amendment:
It is one of the most complex Amendment and one of the most important for dealing with contemporary civil rights and civil liberties. It is also helpful in understanding how Judges analyze cases as part of their role in the Judiciary.
The 14th Amendment is used to protect our rights and prevent discrimination by state governments. The 5th Amendment is used to protect our right and prevent discrimination by the national government. We’ll discuss that relationship more deeply later.
The entire 14th Amendment is rather long. It has 4 separate section of a paragraph each, along with a mini “necessary and proper” clause supporting it. The last two clauses of the second sentence of Section 1 is the most important for our purposes in this course.
“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.”
Evolution of the Interpretation of the 14th Amendment
There are 3 phrases which have dominated interpretation of this Amendment:
1) Privileges or immunities
2) Due Process
3) Equal Protection
I mentioned before how the courts have re-interpreted the 14th Amendment over the years. It was originally the Privileges and Immunities clause which applied the 14th Amendment against the States by making sure our rights were protected. The due process clause and equal protection clauses were not heavily relied upon yet. A series of cases in 187 called the Slaughter-House cases changed the way that the Judiciary treated that clause. It limited the authority that the national government had over the states. The case established that only our rights under the national government and not our our rights under state governments were not protected by the Privileges and Immunities clause. This limited the way that the national government, specifically Congress and the Judiciary, could use the 14th Amendment to protect citizens within the states.
However, the evolution of the 14th Amendment continued. Although up until that point “due process” was just a protection of procedure, the Courts began to extend its interpretation of it so that it protected actual substantive rights as well. The courts started relying on the Due Process clause and later the Equal Protection clause as well. Judicial interpretation of those clauses applied specific Amendments in the Bill of Rights against the states to protect the citizens when there was a conflict with state law.
The interpretation and application of the Privileges and Immunities clause is still debated. It’s entirely possible that future judges of the Supreme Court overturn the precedent in the Slaughterhouse Cases and decide that the clause does protect our national Constitutional rights rather than just rights recognized by the state. The controversy with the Privileges and Immunities clause and the resulting compensation by the courts using the Due Process and Equal Protection clauses is at the heart of early 14th Amendment discussion.
Doctrine of Incorporation
Now we are going to discuss the way that the 14th Amendment applies and protects our Constitutional rights against the states in a way that had not existed before the Civil War.
The 14th Amendment says, ” Nor shall any state deprive any person of life, liberty, or property, without due process of law.” You’ll also notice the words “Due process”. Where else have you seen that in the Constitution? The 5th Amendment which says no person should “be deprived of life, liberty, or property, without due process of law.”
The due process concept is the same in each Amendment, but the 5th is applied against the national government and the 14th is applied against the States. However, that isn’t the only way those two due process clauses are linked.
Originally, the Bill of Rights only applied against the National Government. But 50 years after the Civil War Amendments were drafted, the Judiciary started to decide, in a series of separate but progressing cases, that the entire Bill of Rights should be applied against the states through the Due Process clause of the 14th Amendment.
The first case to do so this 1897 called Chicago, Burlington & Quincy Railroad Co. v. City of Chicago. This case was the first case to use incorporation, but it did so in a way that was not specifically followed by future cases. The main case that is credited with this application of the Bill of Rights is called Gitlow v. New York in 1925. That case, and future ones, applied the First Amendment against the states using the 14th Amendment.
As a result, the 14th Amendment is now said to “incorporate” many of the rights in the first 10 Amendments and apply them against the States. The question of whether every right in each Amendment does apply still remains in legal question as it is not unanimous. One can say that if some rights apply that all should apply. Many judges and legal scholars have made that argument. However, there is still disagreement as to the extent to which incorporation should apply all of the Amendments against the states. There are also many people who think that Incorporation itself is invalid which we’ll get to later.
The concept of “Partial incorporation” also exists. It means that only parts of certain Amendments have been ruled by the Judiciary to apply against the states. Remember that most of the Amendments in the Constitution have multiple clauses and rights protected.
I would recommend that you read the “Nationalization of the Bill of Rights” article on Blackboard for a more comprehensive look at the history of Incorporation. Cortner goes into depth as to the extent in which the Courts have determined each right is incorporated.
This is also a useful article showing which rights have been incorporated by which cases:
The 9th and 10th Amendments are not incorporated. The 9th Amendment could be said to have relevance against the states, but the issue of what specific rights are actually protected arises once again. That question makes it impossible to decide whether a specific unenumerated right should be applied against the states. But it does raise the question whether we have protection against the states for rights unenumerated that the national government should protect. The 10th Amendment already directly relates to the balance between the national and state government so incorporation wouldn’t change that.
Even if we accept that some of the rights and liberties in our Amendments apply, how would you go about actually making that argument in court from a pragmatic view?
Let’s say that you want to bring a lawsuit claiming that a State violated your Freedom of Speech under the 1st Amendment. You would initially use the 14th Amendment to incorporate your 1st Amendment claim against a State government. Then you’d show how your 1st Amendment right to Freedom of Speech was limited in the situation you claim.
You can think of the 14th Amendment in this regard as a bridge between the Bill of Rights and the States. The 14th Amendment is a procedural claim that you need in order to have your Constitutional rights protected against a state. But you then have to go further and show how the specific right you are claiming was violated by the state.
Incorporation is only used against the states. If you are bringing a 1st Amendment claim against the National Government, you would only need to use the 1st Amendment itself. The 14th Amendment has usages beyond Incorporation. But when you are using it for Incorporation, it’s just being used against the states. There is no need to incorporate the Bill of Rights against the national government it has always applied against them.
There’s another point to make here. The language of the 14th Amendment doesn’t say anything about incorporation or applying the Bill of Rights against the states. The Judiciary created this process in order to protect citizen rights against the states. And while many would say that is a noble goal, it may have been the wrong method to use. Should this power be left to our representatives to put it into the law rather than having the Court read into the 14th Amendment a concept that is not written in there?
If we want the 14th Amendment, or any part of the Constitution, to apply against the states when no such enumerated provision exists, do we want the Courts making the decision? Should we require the Constitution be amended itself?
Remember how I said that the 14th Amendment has an Enabling Clause too, like the 13th Amendment. Should Congress have some power in deciding whether Incorporation of specific Amendments, or rights within those Amendments, apply against the states?
Discussion Question: Would you consider Incorporation to be a Constitutionally legitimate process? Should it require an Amendment to the Constitution or Congressional law before the Judiciary expands the 14th Amendment to this extent?
What about the Tenth Amendment and the compromise between the Federalists and Anti-Federalists? The decision to not apply the Bill of Rights against the states was a concession to the Anti-Federalists to make sure the states still had some power.
The Judiciary making the decision to apply some of our Amendments against the states greatly weakened the states in a way that is not supported by the actual language of the 14th Amendment. As a result, one could say that incorporation is an implied power of the National government in enforcing our rights against the states.
Discussion Question: Is the power of Incorporation a violation of the 10th Amendment? Does it take too much power from the states by allowing the national Judiciary to hold them to rules that are not expressly written in the Constitution by the 14th Amendment?
If you have questions about the Judiciary reading the power of incorporation into the 14th Amendment, you are going to have even more to say with the next thing they did.
Doctrine of Reverse Incorporation
There was a 1954 case in the Supreme Court called Bolling v. Sharpe. The subject matter of the case related to school segregation in Washington, D.C. This case actually preceded Brown v. Board of Education which held that “separate but equal” was unconstitutional. However, the decision in Bolling was done after the court discussed Brown. So the two cases were on the minds of the Justices of that Supreme Court.
Since this was Washington D.C, the jurisdiction was under federal and not state law. Therefore, the 14th Amendment could not and was not used in this case. The plaintiffs in the case relied on the 5th Amendment to claim a violation of due process rights.
Even though the 5th Amendment and the 14th Amendment each have “Due process” clauses, only the 14th Amendment has an “equal protection clause.”
Chief Justice Warren was seeking justice in this case as well as symmetry within the law. He took the “Equal Protection” part of the 14th Amendment and interpreted it into the language of the 5th Amendment through “Reverse Incorporation”.
“The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.”
Warren said that discrimination can be a violation of due process. Therefore, even though the 5th Amendment didn’t specifically have a section protecting against discrimination in the way that the 14th Amendment had “Equal protection,” the 5th Amendment due process clause can actually contain protection against discrimination.
Therefore, “Equal protection” rights can be read into 5th Amendment “Due process.”
The influence of the 14th Amendment redefined the extent to which the 5th amendment due process clause protects against discrimination.
Warren finished up strong with a plea for legal and Constitutional symmetry:
“In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. [Footnote 5] We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.”
The concept and application of “reverse incorporation” is often considered on par with the display of “legal judo” that Marshall used in Marbury v. Madison. That being said, the reasons for this decision are not entirely clear. Some claim that it was done under the cover of judicial activism, a charge often brought against Marshall. Some say it was an attempt by the Court to gain more power by expanding the Constitution on their own. One could support the concept of reverse incorporation simply as a form of legal symmetry: holding the National Government additionally responsible to uphold Equal Protection much as the State Governments became responsible to uphold Due Process.
The language of 5th Amendment “due process” was always open to interpretation. Was adding the concept of “equal protection” beyond the Court’s authority? It’s not like this was the first time the Court was deciding what counted as “due process.”
Discussion Question: Did Justice Warren use “reverse incorporation” in an illegitimate way to re-interpret and expand the 5th Amendment of the Constitution?
Just as a final review of terms covered here:
Incorporation = Using the 14th Amendment to apply some of the rights in the Amendments of the Bill of Rights against the States. Essentially this is the 14th Amendment using our national rights against the states.
Reverse Incorporation = Using the idea of the “Equal Protection” clause of the 14th Amendment to influence the interpretation of the “Due process” clause of the 5th Amendment. Essentially, this is the courts using the 14th amendment that applied against the states to re-define the way that the 5th Amendment applies against the national government. The 14th Amendment is not actually changing the 5th Amendment. It was the Courts using 14th Amendment principles as an influence to expand 5th Amendment power.
On Thursday we will talk in depth about the “due process” and “equal protection” clauses and how they are analyzed by the Court in the “Scrutiny level” analysis.
Reading Assignment to be completed before Session 16:
- Inside Constitutional Law – Chapter 8: Pages 239 – 240. 286 – 297.
- Cortner, “The Nationalization of the Bill of Rights: An Overview”
- Read Session 16 notes.
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