Fourteenth Amendment: Citizenship, due process and equal protection

The Fourteenth Amendment is the most important amendment for local government. Ratified in 1868 after the Civil War, it did three big things. It made everyone born here a citizen. It required states to provide "due process of law" and "the equal protection of the laws." And through its Due Process Clause, the Supreme Court has applied most of the Bill of Rights to the states, which is the only reason the First, Fourth, Fifth, Sixth and Eighth Amendments bind the City of Williams at all.

History

After the Thirteenth Amendment abolished slavery, Congress passed the Civil Rights Act of 1866 and then proposed the Fourteenth Amendment to put civil rights beyond the reach of ordinary politics Verified2. Section 1's first sentence overruled the Dred Scott decision's holding that Black Americans couldn't be citizens Verified2.

Section 1: The core

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.

Source: National Archives transcription Verified1

Section 1 has four clauses. Here they are one by one.

Citizenship Clause

"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." In United States v. Wong Kim Ark (1898), a man born in San Francisco to Chinese parents who lived there "becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment" (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) Verified3.

Privileges or Immunities Clause

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It could have been the vehicle for applying the Bill of Rights to the states. In the Slaughter-House Cases (1873), the Court read it narrowly, protecting only rights of national citizenship, and left most rights to the states, "beyond the very few express limitations which the Federal Constitution imposed upon the States" (Slaughter-House Cases, 83 U.S. 36 (1873)) Verified4. It has had little force since, with an exception for the right of new residents to be treated equally (Saenz v. Roe, 526 U.S. 489 (1999)) Verified5.

Due Process Clause

"Nor shall any State deprive any person of life, liberty, or property, without due process of law." Note "any person," not just citizens. This clause does three jobs, covered in the sections below: incorporation, procedural due process, and substantive due process, plus the vagueness doctrine.

Equal Protection Clause

"Nor deny to any person within its jurisdiction the equal protection of the laws." Covered in Equal protection. It protects everyone in the state's jurisdiction, including noncitizens: "Whatever his status under the immigration laws, an alien is a 'person' in any ordinary sense of that term" (Plyler v. Doe, 457 U.S. 202 (1982)) Verified6.

Incorporation: how the Bill of Rights reaches Williams

The Bill of Rights originally limited only Congress (Barron v. Baltimore, 32 U.S. 243 (1833)) Verified7. Starting in the 1920s, the Court held that the Fourteenth Amendment's "liberty" includes particular Bill of Rights guarantees. It first asked whether a right was "implicit in the concept of ordered liberty" (Palko v. Connecticut, 302 U.S. 319 (1937)) Verified8. Later it asked whether a protection is "fundamental to our scheme of ordered liberty" or "deeply rooted in this Nation's history and tradition," and held that "if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires" (Timbs v. Indiana, 586 U.S. 146 (2019)) Verified9.

More in Incorporation.

Procedural due process

Before the government takes away life, liberty or property, it must give fair procedures. Two questions:

1. Is there a protected interest? Property includes more than land and money; it includes benefits and licenses a person is legally entitled to. A person "must, instead, have a legitimate claim of entitlement to it," not "a unilateral expectation" (Board of Regents v. Roth, 408 U.S. 564 (1972)) Verified10. Not everything counts: a woman whose husband violated a restraining order "did not, for Due Process Clause purposes, have a property interest in police enforcement" of it (Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005)) Verified11.

2. What process is due? Courts weigh "three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest," including fiscal and administrative burdens (Mathews v. Eldridge, 424 U.S. 319 (1976)) Verified12.

The core: notice and an opportunity to be heard.

• Notice must be real. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)) Verified13. If mailed notice of a tax sale comes back unclaimed, the government "must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so" (Jones v. Flowers, 547 U.S. 220 (2006)) Verified14.
• A hearing, usually before the deprivation. Welfare benefits can't be cut off without a prior evidentiary hearing (Goldberg v. Kelly, 397 U.S. 254 (1970)) Verified15. A public employee with job protection gets "notice and an opportunity to respond" before being fired (Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)) Verified16.
• City utilities. In Memphis Light, Gas & Water Division v. Craft (1978), a city-owned utility shut off a family's service for nonpayment during a billing dispute. "Utility service is a necessity of modern life," and "some administrative procedure for entertaining customer complaints prior to termination is required" (Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978)) Verified17. The notice was also defective because it didn't tell customers how to dispute the bill Verified17.
• A neutral decisionmaker. A judge with "a direct, personal, substantial pecuniary interest in reaching a conclusion against" a defendant violates due process (Tumey v. Ohio, 273 U.S. 510 (1927)) Verified18. Tumey involved a village mayor who was paid out of the costs he imposed. In Ward v. Monroeville (1972), a mayor who heard traffic cases was disqualified because his court's fines "provided a substantial portion of village funds," even though he wasn't personally paid; the test is whether the arrangement offers "a possible temptation to the average man as a judge" (Ward v. Village of Monroeville, 409 U.S. 57 (1972)) Verified19.

Vagueness

A law is void for vagueness if it doesn't tell people what's prohibited or invites arbitrary enforcement. "A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law" (Connally v. General Construction Co., 269 U.S. 385 (1926)) Verified20.

Grayned v. City of Rockford (1972) explains the two reasons: laws must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited," and "if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them" (Grayned v. Rockford, 408 U.S. 104 (1972)) Verified21.

City ordinances struck down for vagueness:

• Cincinnati, assembling on sidewalks and conducting themselves "in a manner annoying to persons passing by" (Coates v. Cincinnati, 402 U.S. 611 (1971)) Verified22.
• Jacksonville, a vagrancy ordinance that "fails to give a person of ordinary intelligence fair notice" and "encourages arbitrary and erratic arrests" (Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)) Verified23.
• Chicago, a gang "loitering" ordinance (City of Chicago v. Morales, 527 U.S. 41 (1999)) Verified24.
• California, a statute requiring people stopped by police to give "credible and reliable" identification (Kolender v. Lawson, 461 U.S. 352 (1983)) Verified25.

Substantive due process

Some liberties are protected no matter how fair the procedures. The Court protects rights that are "deeply rooted in this Nation's history and tradition" (Dobbs, applying this test) Verified26. Recognized examples include marriage, including interracial marriage (Loving v. Virginia, 388 U.S. 1 (1967)) Verified27 and same-sex marriage ("The Fourteenth Amendment requires a State to license a marriage between two people of the same sex") (Obergefell v. Hodges, 576 U.S. 644 (2015)) Verified28, and contraception (Griswold v. Connecticut, 381 U.S. 479 (1965)) Verified29. Dobbs held "The Constitution does not confer a right to abortion" and overruled Roe and Casey (Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022)) Verified26. California protects reproductive freedom in its own constitution (Art. I, §1.1) Verified30.

Ordinary economic and land-use regulation gets only rational-basis review under substantive due process; zoning was upheld in Euclid (Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)) Verified31.

No general duty to protect. "A State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause" (DeShaney v. Winnebago County, 489 U.S. 189 (1989)) Verified32.

Equal protection

The baseline. Laws classify people all the time. Most classifications get rational-basis review: they're valid if rationally related to a legitimate purpose.

The tiers

Race. Plessy v. Ferguson (1896) upheld "equal but separate" railway cars (Plessy v. Ferguson, 163 U.S. 537 (1896)) Verified33. Brown v. Board of Education (1954) rejected it: "in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal" (Brown v. Board of Education, 347 U.S. 483 (1954)) Verified34. In 2023: "Eliminating racial discrimination means eliminating all of it," and Harvard's and UNC's race-conscious admissions violated the clause (Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023)) Verified35.

Intent, not just impact. A law isn't unconstitutional "solely because it has a racially disproportionate impact" (Washington v. Davis, 426 U.S. 229 (1976)) Verified36. Courts look for discriminatory intent using factors like "disproportionate impact, the historical background" and the sequence of events (Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)) Verified37. Arlington Heights was a zoning case.

Neutral law, unequal enforcement. A law "fair on its face, and impartial in appearance" violates equal protection "if it is applied and administered by public authority with an evil eye and an unequal hand" (Yick Wo v. Hopkins, 118 U.S. 356 (1886)) Verified38. Yick Wo involved San Francisco laundry permits denied to Chinese applicants.

Rational basis has teeth sometimes. The City of Cleburne, Texas required a special permit for a group home for people with intellectual disabilities. The Court found no rational basis: the requirement "appears to rest on an irrational prejudice" (City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)) Verified39.

Class of one. A single person can bring an equal protection claim if "she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment" (Village of Willowbrook v. Olech, 528 U.S. 562 (2000)) Verified40. Olech involved a village demanding a larger easement from one homeowner than from others to connect to the water system.

Proposition 13 survives. California's acquisition-value property tax system "does not violate the Equal Protection Clause" (Nordlinger v. Hahn, 505 U.S. 1 (1992)) Verified41. See California Article XIII A.

One person, one vote. State legislative districts must be "apportioned on a population basis" (Reynolds v. Sims, 377 U.S. 533 (1964)) Verified42, and so must local governing bodies elected by district: a county resident "has a right to a vote for the Commissioners Court of substantially equal weight to the vote of every other resident" (Avery v. Midland County, 390 U.S. 474 (1968)) Verified43.

Section 2: Apportionment and the vote

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Source: National Archives transcription Verified1

Changed. The age "twenty-one years," marked with an asterisk, was "Changed by section 1 of the 26th amendment," per the Archives. The voting age is 18. Verified44,1

It replaced the Three-Fifths Clause: representatives are apportioned by "counting the whole number of persons in each State." It also provided for reducing a state's representation if it denied men 21 and older the vote. The "twenty-one years" language was changed by the Twenty-sixth Amendment Verified1.

Section 3: Disqualification for insurrection

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Source: National Archives transcription Verified1

It bars former officials who took an oath to support the Constitution and then "engaged in insurrection or rebellion" from holding office, unless Congress removes the disability by a two-thirds vote. In Trump v. Anderson (2024), the Court held "responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States" (Trump v. Anderson, 601 U.S. 100 (2024)) Verified45. States may still apply it to state offices.

Section 4: The public debt

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Source: National Archives transcription Verified1

"The validity of the public debt of the United States, authorized by law ... shall not be questioned." The Court has said its language "indicates a broader connotation" than Civil War debts alone (Perry v. United States, 294 U.S. 330 (1935)) Verified46. It also voided Confederate debts and claims for the loss of enslaved people.

Section 5: Enforcement

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Source: National Archives transcription Verified1

Congress can enforce the amendment "by appropriate legislation," but it can't redefine the rights themselves: "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end" (City of Boerne v. Flores, 521 U.S. 507 (1997)) Verified47. City of Boerne v. Flores (1997) struck down the federal Religious Freedom Restoration Act as applied to states after a city denied a church a building permit.

42 U.S.C. §1983. The most important enforcement statute. It lets people sue "every person who, under color of any statute, ordinance, regulation, custom or usage, of any State" deprives them of federal rights (Monroe v. Pape, 365 U.S. 167 (1961)) Verified48. Key rules for cities:

• Officials acting under color of law can be sued even when they break state law (Monroe v. Pape) Verified48.
• Cities can be sued when an official policy or custom causes the violation, not merely because they employ the wrongdoer (Monell) Verified49.
• A single decision can be policy when made by an official with final policymaking authority: "municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances" (Pembaur v. Cincinnati, 475 U.S. 469 (1986)) Verified50.
• No good-faith defense for cities. "A municipality has no immunity from liability under §1983 flowing from its constitutional violations and may not assert the good faith of its officers as a defense" (Owen v. City of Independence, 445 U.S. 622 (1980)) Verified51. Individual officers can claim qualified immunity; the city can't.

How it reaches Williams

Directly. "No State shall" covers every arm of the state, including cities. Williams is a general law city, a political subdivision of California Verified52,53. Every ordinance, permit decision, utility shutoff, code citation and hearing in Williams must satisfy due process and equal protection, and through incorporation, most of the Bill of Rights.

In Williams

• Utility shutoffs. Williams runs city utilities. Under Craft, before shutting off service for nonpayment, the city must give notice that explains how to dispute the bill and a chance to be heard by someone with authority to fix errors Verified17.
• Code enforcement hearings. Notice must be reasonably calculated to reach the owner; if mail comes back, try again (Mullane, Jones v. Flowers) Verified13,14. See Williams: hearings.
• Who decides. A hearing officer whose pay or budget depends on finding violations raises Tumey/Ward problems Verified18,19.
• Vague ordinances. Words like "annoying," "unsightly" or "loitering" without standards invite vagueness challenges Verified22,21,24. See Williams: vagueness.
• Selective enforcement. Enforcing a rule against one property owner and not similar neighbors, with no rational basis, supports a class-of-one claim Verified40.
• Group homes and zoning. Permit requirements based on prejudice fail even rational-basis review Verified39.
• District elections. Williams elects its council members at large, not by district Verified54. If the city ever switched to districts, they would have to be roughly equal in population Verified43.

Common misconceptions

• "Due process only applies in court." It applies to any government deprivation, including utility shutoffs and code penalties Verified17.
• "Equal protection means everyone must be treated the same." It means similarly situated people treated alike, with most distinctions needing only a rational basis.
• "Disparate impact alone proves discrimination." Not under the Constitution; intent is required Verified36.
• "You can't sue a city for an employee's misconduct." You can't sue just because it employs them, but you can when city policy caused it Verified49.
• "Only citizens are protected." Due process and equal protection cover "any person" Verified6.

Check yourself

Pick an answer for each question. You will see right away if it is right, and why.