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Friday, August 31, 2018

Fourteenth Amendment to the United States Constitution

From Wikipedia, the free encyclopedia

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. The amendment addresses citizenship rights and equal protection of the laws and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage. The amendment limits the actions of all state and local officials, including those acting on behalf of such an official.

The amendment's first section includes several clauses: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The Citizenship Clause provides a broad definition of citizenship, nullifying the Supreme Court's decision in Dred Scott v. Sandford (1857), which had held that Americans descended from African slaves could not be citizens of the United States. The Privileges or Immunities Clause has been interpreted in such a way that it does very little.

The Due Process Clause prohibits state and local government officials from depriving persons of life, liberty, or property without legislative authorization. This clause has also been used by the federal judiciary to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural requirements that state laws must satisfy. The Equal Protection Clause requires each state to provide equal protection under the law to all people, including all non-citizens, within its jurisdiction. This clause has been the basis for many decisions rejecting irrational or unnecessary discrimination against people belonging to various groups.

The second, third, and fourth sections of the amendment are seldom litigated. However, the second section's reference to "rebellion and other crime" has been invoked as a constitutional ground for felony disenfranchisement. The fourth section was held, in Perry v. United States (1935), to prohibit a current Congress from abrogating a contract of debt incurred by a prior Congress. The fifth section gives Congress the power to enforce the amendment's provisions by "appropriate legislation"; however, under City of Boerne v. Flores (1997), this power may not be used to contradict a Supreme Court decision interpreting the amendment.

Text

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.

Section 2. 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.

Section 3. 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.

Section 4. 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.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Adoption

Proposal by Congress

In the final years of the American Civil War and the Reconstruction Era that followed, Congress repeatedly debated the rights of black former slaves freed by the 1863 Emancipation Proclamation and the 1865 Thirteenth Amendment, the latter of which had formally abolished slavery. Following the passage of the Thirteenth Amendment by Congress, however, Republicans grew concerned over the increase it would create in the congressional representation of the Democratic-dominated Southern States. Because the full population of freed slaves would now be counted for determining congressional representation, rather than the three-fifths previously mandated by the Three-Fifths Compromise, the Southern States would dramatically increase their power in the population-based House of Representatives, regardless of whether the former slaves were allowed to vote. Republicans began looking for a way to offset this advantage, either by protecting and attracting votes of former slaves, or at least by discouraging their disenfranchisement.

In 1865, Congress passed what would become the Civil Rights Act of 1866, guaranteeing citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. The bill also guaranteed equal benefits and access to the law, a direct assault on the Black Codes passed by many post-war states. The Black Codes attempted to return ex-slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, prohibiting them from owning firearms, and preventing them from suing or testifying in court.

Although strongly urged by moderates in Congress to sign the bill, President Andrew Johnson vetoed it on March 27, 1866. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress, and that it discriminated in favor of African-Americans and against whites. Three weeks later, Johnson's veto was overridden and the measure became law. Despite this victory, even some Republicans who had supported the goals of the Civil Rights Act began to doubt that Congress really possessed constitutional power to turn those goals into laws. The experience also encouraged both radical and moderate Republicans to seek Constitutional guarantees for black rights, rather than relying on temporary political majorities.

Over 70 proposals for an amendment were drafted. In late 1865, the Joint Committee on Reconstruction proposed an amendment stating that any citizens barred from voting on the basis of race by a state would not be counted for purposes of representation of that state. This amendment passed the House, but was blocked in the Senate by a coalition of Radical Republicans led by Charles Sumner, who believed the proposal a "compromise with wrong", and Democrats opposed to black rights. Consideration then turned to a proposed amendment by Representative John A. Bingham of Ohio, which would enable Congress to safeguard "equal protection of life, liberty, and property" of all citizens; this proposal failed to pass the House. In April 1866, the Joint Committee forwarded a third proposal to Congress, a carefully negotiated compromise that combined elements of the first and second proposals as well as addressing the issues of Confederate debt and voting by ex-Confederates. The House of Representatives passed House Resolution 127, 39th Congress several weeks later and sent to the Senate for action. The resolution was debated and several amendments to it were proposed. Amendments to Sections 2, 3, and 4 were adopted on June 8, 1866, and the modified resolution passed by a 33 to 11 vote. The House agreed to the Senate amendments on June 13 by a 138–36 vote. A concurrent resolution requesting the President to transmit the proposal to the executives of the several states was passed by both houses of Congress on June 18.

The Radical Republicans were satisfied that they had secured civil rights for blacks, but were disappointed that the amendment would not also secure political rights for blacks; in particular, the right to vote. For example, Thaddeus Stevens, a leader of the disappointed Radical Republicans, said: "I find that we shall be obliged to be content with patching up the worst portions of the ancient edifice, and leaving it, in many of its parts, to be swept through by the tempests, the frosts, and the storms of despotism." Abolitionist Wendell Phillips called it a "fatal and total surrender". This point would later be addressed by the Fifteenth Amendment.

Ratification by the states

  Ratified amendment pre-certification, 1866–1868
  Ratified amendment pre-certification after first rejecting it, 1868
  Ratified amendment post-certification after first rejecting it, 1869–1976
  Ratified amendment post-certification, 1959
  Ratified amendment, withdrew ratification (rescission), then re-ratified. Oregon rescinded ratification post-certification and was included in the official count
  Territories of the United States in 1868, not yet states

Ratification of the amendment was bitterly contested. State legislatures in every formerly Confederate state, with the exception of Tennessee, refused to ratify it. This refusal led to the passage of the Reconstruction Acts. Ignoring the existing state governments, military government was imposed until new civil governments were established and the Fourteenth Amendment was ratified. It also prompted Congress to pass a law on March 2, 1867, requiring that a former Confederate state must ratify the Fourteenth Amendment before "said State shall be declared entitled to representation in Congress".

The first twenty-eight states to ratify the Fourteenth Amendment were:
If rescission by Ohio and New Jersey were invalid, South Carolina would have been the 28th State. Rescission by Oregon did not occur until later. These rescissions caused significant controversy. However, ratification by other states continued during the course of the debate:
On July 20, 1868, Secretary of State William H. Seward certified that if withdrawals of ratification by New Jersey and Ohio were ineffective, then the amendment had become part of the Constitution on July 9, 1868, with ratification by South Carolina. The following day, Congress adopted and transmitted to the Department of State a concurrent resolution declaring the Fourteenth Amendment to be a part of the Constitution and directing the Secretary of State to promulgate it as such. Both New Jersey and Ohio were named in the congressional resolution as having ratified the amendment, although Alabama was also named, making 29 states total.

On the same day, one more State ratified:
  • Georgia – July 21, 1868 (after rejection – November 9, 1866)
On July 27, Secretary Seward received the formal ratification from Georgia. The following day, July 28, Secretary Seward issued his official proclamation certifying the ratification of the 14th Amendment. Secretary Seward stated that his proclamation was "in conformance" to the resolution by Congress, but his official list of States included both Alabama and Georgia, as well as Ohio and New Jersey.

The inclusion of Ohio and New Jersey has led some to question the validity of rescission of a ratification. The inclusion of Alabama and Georgia has called that conclusion into question. While there have been Supreme Court cases dealing with ratification issues, this particular question has never been adjudicated.

The Fourteenth Amendment was subsequently ratified:
  • Virginia – October 8, 1869 (after rejection – January 9, 1867)
  • Mississippi – January 17, 1870
  • Texas – February 18, 1870 (after rejection – October 27, 1866)
  • Delaware – February 12, 1901 (after rejection – February 8, 1867)
  • Maryland – April 4, 1959[28] (after rejection – March 23, 1867)
  • California – May 6, 1959
  • Kentucky – March 30, 1976 (after rejection – January 8, 1867)
Since Ohio and New Jersey re-ratified the Fourteenth Amendment in 2003, all U.S. states that existed during Reconstruction have ratified the amendment.

Citizenship and civil rights

The two pages of the Fourteenth Amendment in the National Archives

Background

Section 1 of the amendment formally defines United States citizenship and also protects various civil rights from being abridged or denied by any state or state actor. Abridgment or denial of those civil rights by private persons is not addressed by this amendment; the Supreme Court held in the Civil Rights Cases (1883) that the amendment was limited to "state action" and, therefore, did not authorize the Congress to outlaw racial discrimination by private individuals or organizations (though Congress can sometimes reach such discrimination via other parts of the Constitution). U.S. Supreme Court Justice Joseph P. Bradley commented in the Civil Rights Cases that "individual invasion of individual rights is not the subject-matter of the [14th] Amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws."

The Radical Republicans who advanced the Thirteenth Amendment hoped to ensure broad civil and human rights for the newly freed people—but its scope was disputed before it even went into effect. The framers of the Fourteenth Amendment wanted these principles enshrined in the Constitution to protect the new Civil Rights Act from being declared unconstitutional by the Supreme Court and also to prevent a future Congress from altering it by a mere majority vote. This section was also in response to violence against black people within the Southern States. The Joint Committee on Reconstruction found that only a Constitutional amendment could protect black people's rights and welfare within those states.

This first section of the amendment has been the most frequently litigated part of the amendment, and this amendment in turn has been the most frequently litigated part of the Constitution.

Citizenship Clause

U.S. Senator from Michigan Jacob M. Howard, author of the Citizenship Clause

The Citizenship Clause overruled the Supreme Court's Dred Scott decision that black people were not citizens and could not become citizens, nor enjoy the benefits of citizenship. Some members of Congress voted for the Fourteenth Amendment in order to eliminate doubts about the constitutionality of the Civil Rights Act of 1866, or to ensure that no subsequent Congress could later repeal or alter the main provisions of that Act. The Civil Rights Act of 1866 had granted citizenship to all persons born in the United States if they were not subject to a foreign power, and this clause of the Fourteenth Amendment constitutionalized this rule.

There are varying interpretations of the original intent of Congress and of the ratifying states, based on statements made during the congressional debate over the amendment, as well as the customs and understandings prevalent at that time. Some of the major issues that have arisen about this clause are the extent to which it included Native Americans, its coverage of non-citizens legally present in the United States when they have a child, whether the clause allows revocation of citizenship, and whether the clause applies to illegal immigrants.

Historian Eric Foner, who has explored the question of U.S. birthright citizenship to other countries, argues that:
Many things claimed as uniquely American—a devotion to individual freedom, for example, or social opportunity—exist in other countries. But birthright citizenship does make the United States (along with Canada) unique in the developed world. [...] Birthright citizenship is one expression of the commitment to equality and the expansion of national consciousness that marked Reconstruction. [...] Birthright citizenship is one legacy of the titanic struggle of the Reconstruction era to create a genuine democracy grounded in the principle of equality.

Native Americans

During the original congressional debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes Native Americans who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." According to historian Glenn W. LaFantasie of Western Kentucky University, "A good number of his fellow senators supported his view of the citizenship clause." Others also agreed that the children of ambassadors and foreign ministers were to be excluded.

Senator James Rood Doolittle of Wisconsin asserted that all Native Americans were subject to United States jurisdiction, so that the phrase "Indians not taxed" would be preferable, but Senate Judiciary Committee Chairman Lyman Trumbull and Howard disputed this, arguing that the federal government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States. In Elk v. Wilkins (1884), the clause's meaning was tested regarding whether birth in the United States automatically extended national citizenship. The Supreme Court held that Native Americans who voluntarily quit their tribes did not automatically gain national citizenship. The issue was resolved with the passage of the Indian Citizenship Act of 1924, which granted full U.S. citizenship to indigenous peoples.

Children born to citizens of other countries

The Fourteenth Amendment provides that children born in the United States and subject to its jurisdiction become American citizens at birth. At the time of the amendment's passage, three Senators, including Trumbull, the author of the Civil Rights Act, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the Fourteenth Amendment would confer citizenship at birth on children born in the United States to citizens of foreign countries; however, Senator Edgar Cowan of Pennsylvania had a definitively contrary opinion. These congressional remarks applied to non-citizens lawfully present in the United States, as the problem of unauthorized immigration did not exist in 1866, and some scholars dispute whether the Citizenship Clause applies to unauthorized immigrants, although the law of the land continues to be based on the standard interpretation. Congress during the 21st century has occasionally discussed revising the clause to reduce the practice of "birth tourism", in which a pregnant foreign national gives birth in the United States for purposes of the child's citizenship.

The clause's meaning with regard to a child of legal immigrants was tested in United States v. Wong Kim Ark (1898). The Supreme Court held that under the Fourteenth Amendment, a man born within the United States to Chinese citizens who have a permanent domicile and residence in the United States and are carrying on business in the United States—and whose parents were not employed in a diplomatic or other official capacity by a foreign power—was a citizen of the United States. Subsequent decisions have applied the principle to the children of foreign nationals of non-Chinese descent.

According to the Foreign Affairs Manual, which is published by the Department of Defense, "Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the [Fourteenth] Amendment."

Loss of citizenship

Loss of national citizenship is possible only under the following circumstances:
  • Fraud in the naturalization process. Technically, this is not a loss of citizenship but rather a voiding of the purported naturalization and a declaration that the immigrant never was a citizen of the United States.
  • Affiliation with "anti-American" organizations (e.g., the Communist party, terrorist organizations, etc.) within 5 years of naturalization. The State department views such affiliations as sufficient evidence that an applicant must have lied or concealed evidence in the naturalization process. 
  • Other-than-honorable discharge from the U.S. armed forces before 5 years of honorable service, if honorable service was the basis for the naturalization. 
  • Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the State Department or through other actions that demonstrate desire to give up national citizenship.
For much of the country's history, voluntary acquisition or exercise of a foreign citizenship was considered sufficient cause for revocation of national citizenship. This concept was enshrined in a series of treaties between the United States and other countries (the Bancroft Treaties). However, the Supreme Court repudiated this concept in Afroyim v. Rusk (1967), as well as Vance v. Terrazas (1980), holding that the Citizenship Clause of the Fourteenth Amendment barred the Congress from revoking citizenship. However, Congress can revoke citizenship that it had previously granted to a person not born in the United States.

Privileges or Immunities Clause

The Privileges or Immunities Clause, which protects the privileges and immunities of national citizenship from interference by the states, was patterned after the Privileges and Immunities Clause of Article IV, which protects the privileges and immunities of state citizenship from interference by other states. In the Slaughter-House Cases (1873), the Supreme Court concluded that the Constitution recognized two separate types of citizenship—"national citizenship" and "state citizenship"—and the Court held that the Privileges or Immunities Clause prohibits states from interfering only with privileges and immunities possessed by virtue of national citizenship. The Court concluded that the privileges and immunities of national citizenship included only those rights that "owe their existence to the Federal government, its National character, its Constitution, or its laws." The Court recognized few such rights, including access to seaports and navigable waterways, the right to run for federal office, the protection of the federal government while on the high seas or in the jurisdiction of a foreign country, the right to travel to the seat of government, the right to peaceably assemble and petition the government, the privilege of the writ of habeas corpus, and the right to participate in the government's administration. This decision has not been overruled and has been specifically reaffirmed several times. Largely as a result of the narrowness of the Slaughter-House opinion, this clause subsequently lay dormant for well over a century.

In Saenz v. Roe (1999), the Court ruled that a component of the "right to travel" is protected by the Privileges or Immunities Clause:
Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause "is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State." (emphasis added)
Justice Miller actually wrote in the Slaughter-House Cases that the right to become a citizen of a state (by residing in that state) "is conferred by the very article under consideration" (emphasis added), rather than by the "clause" under consideration.

In McDonald v. Chicago (2010), Justice Clarence Thomas, while concurring with the majority in incorporating the Second Amendment against the states, declared that he reached this conclusion through the Privileges or Immunities Clause instead of the Due Process Clause. Randy Barnett has referred to Justice Thomas's concurring opinion as a "complete restoration" of the Privileges or Immunities Clause.

Due Process Clause

In the 1884 case of Hurtado v. California, the U.S. Supreme Court said:
Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.
The Due Process Clause of the Fourteenth Amendment applies only against the states, but it is otherwise textually identical to the Due Process Clause of the Fifth Amendment, which applies against the federal government; both clauses have been interpreted to encompass identical doctrines of procedural due process and substantive due process. Procedural due process is the guarantee of a fair legal process when the government tries to interfere with a person's protected interests in life, liberty, or property, and substantive due process is the guarantee that the fundamental rights of citizens will not be encroached on by government. The Due Process Clause of the Fourteenth Amendment also incorporates most of the provisions in the Bill of Rights, which were originally applied against only the federal government, and applies them against the states.

Substantive due process

Beginning with Allgeyer v. Louisiana (1897), the Court interpreted the Due Process Clause as providing substantive protection to private contracts, thus prohibiting a variety of social and economic regulation; this principle was referred to as "freedom of contract." Thus, the Court struck down a law decreeing maximum hours for workers in a bakery in Lochner v. New York (1905) and struck down a minimum wage law in Adkins v. Children's Hospital (1923). In Meyer v. Nebraska (1923), the Court stated that the "liberty" protected by the Due Process Clause
[w]ithout doubt...denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
However, the Court did uphold some economic regulation, such as state Prohibition laws (Mugler v. Kansas, 1887), laws declaring maximum hours for mine workers (Holden v. Hardy, 1898), laws declaring maximum hours for female workers (Muller v. Oregon, 1908), and President Woodrow Wilson's intervention in a railroad strike (Wilson v. New, 1917), as well as federal laws regulating narcotics (United States v. Doremus, 1919). The Court repudiated, but did not explicitly overrule, the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937).

In Poe v. Ullman (1961), dissenting judge John Marshall Harlan II adopted a broad view of the "liberty" protected by the Fourteenth Amendment Due Process clause:
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.
This broad view of liberty was adopted by the Supreme Court in Griswold v. Connecticut (for further information see below). Although the "freedom of contract" described above has fallen into disfavor, by the 1960s, the Court had extended its interpretation of substantive due process to include other rights and freedoms that are not enumerated in the Constitution but that, according to the Court, extend or derive from existing rights. For example, the Due Process Clause is also the foundation of a constitutional right to privacy. The Court first ruled that privacy was protected by the Constitution in Griswold v. Connecticut (1965), which overturned a Connecticut law criminalizing birth control. While Justice William O. Douglas wrote for the majority that the right to privacy was found in the "penumbras" of various provisions in the Bill of Rights, Justices Arthur Goldberg and John Marshall Harlan II wrote in concurring opinions that the "liberty" protected by the Due Process Clause included individual privacy.

The right to privacy was the basis for Roe v. Wade (1973), in which the Court invalidated a Texas law forbidding abortion except to save the mother's life. Like Goldberg's and Harlan's concurring opinions in Griswold, the majority opinion authored by Justice Harry Blackmun located the right to privacy in the Due Process Clause's protection of liberty. The decision disallowed many state and federal abortion restrictions, and it became one of the most controversial in the Court's history. In Planned Parenthood v. Casey (1992), the Court decided that "the essential holding of Roe v. Wade should be retained and once again reaffirmed."

In Lawrence v. Texas (2003), the Court found that a Texas law against same-sex sexual intercourse violated the right to privacy. In Obergefell v. Hodges (2015), the Court ruled that the fundamental right to marriage included same-sex couples being able to marry.

Procedural due process

When the government seeks to burden a person's protected liberty interest or property interest, the Supreme Court has held that procedural due process requires that, at a minimum, the government provide the person notice, an opportunity to be heard at an oral hearing, and a decision by a neutral decision maker. For example, such process is due when a government agency seeks to terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits. The Court has also ruled that the Due Process Clause requires judges to recuse themselves in cases where the judge has a conflict of interest. For example, in Caperton v. A.T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia had to recuse himself from a case involving a major contributor to his campaign for election to that court.

Incorporation

While many state constitutions are modeled after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. In Barron v. Baltimore (1833), the Supreme Court unanimously ruled that the Bill of Rights restrained only the federal government, not the states. However, the Supreme Court has subsequently held that most provisions of the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment under a doctrine called "incorporation."

Whether incorporation was intended by the amendment's framers, such as John Bingham, has been debated by legal historians. According to legal scholar Akhil Reed Amar, the framers and early supporters of the Fourteenth Amendment believed that it would ensure that the states would be required to recognize the same individual rights as the federal government; all of these rights were likely understood as falling within the "privileges or immunities" safeguarded by the amendment.

By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states. The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Second, Fourth, Fifth (except for its Grand Jury Clause) and Sixth Amendments and the Cruel and Unusual Punishment Clause of the Eighth Amendment. While the Third Amendment has not been applied to the states by the Supreme Court, the Second Circuit ruled that it did apply to the states within that circuit's jurisdiction in Engblom v. Carey. The Seventh Amendment right to jury trial in civil cases has been held not to be applicable to the states, but the amendment's Re-Examination Clause applies not only to federal courts, but also to "a case tried before a jury in a state court and brought to the Supreme Court on appeal."

On June 18, 2018, the Supreme Court agreed to hear Timbs v. Indiana. Timbs will decide whether the Excessive Fines Clause of the Eighth Amendment should be applied to the states.

Equal Protection Clause

Representative John Bingham of Ohio, principal author of the Equal Protection Clause

The Equal Protection Clause was created largely in response to the lack of equal protection provided by law in states with Black Codes. Under Black Codes, blacks could not sue, give evidence, or be witnesses. They also were punished more harshly than whites. In 1880, the Supreme Court stated in Strauder v. West Virginia that the Equal Protection Clause was
The Clause mandates that individuals in similar situations be treated equally by the law. Although the text of the Fourteenth Amendment applies the Equal Protection Clause only against the states, the Supreme Court, since Bolling v. Sharpe (1954), has applied the Clause against the federal government through the Due Process Clause of the Fifth Amendment under a doctrine called "reverse incorporation."
In Yick Wo v. Hopkins (1886), the Supreme Court has clarified that the meaning of "person" and "within its jurisdiction" in the Equal Protection Clause would not be limited to discrimination against African Americans, but would extend to other races, colors, and nationalities such as (in this case) legal aliens in the United States who are Chinese citizens:
These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws.
Persons "within its jurisdiction" are entitled to equal protection from a state. Largely because the Privileges and Immunities Clause of Article IV has from the beginning guaranteed the privileges and immunities of citizens in the several states, the Supreme Court has rarely construed the phrase "within its jurisdiction" in relation to natural persons. In Plyler v. Doe (1982), where the Court held that aliens illegally present in a state are within its jurisdiction and may thus raise equal protection claims the Court explicated the meaning of the phrase "within its jurisdiction" as follows: "[U]se of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory." The Court reached this understanding among other things from Senator Howard, a member of the Joint Committee of Fifteen, and the floor manager of the amendment in the Senate. Senator Howard was explicit about the broad objectives of the Fourteenth Amendment and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a state:
The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. ... It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all person who may happen to be within their jurisdiction. [emphasis added by the U.S. Supreme Court]
The relationship between the Fifth and Fourteenth Amendments was addressed by Justice Field in Wong Wing v. United States (1896). He observed with respect to the phrase "within its jurisdiction": "The term 'person,' used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws. ... The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar—in face of the great constitutional amendment which declares that no State shall deny to any person within its jurisdiction the equal protection of the laws."

The Supreme Court also decided whether foreign corporations are also within the jurisdiction of a state, ruling that a foreign corporation which sued in a state court in which it was not licensed to do business to recover possession of property wrongfully taken from it in another state was within the jurisdiction and could not be subjected to unequal burdens in the maintenance of the suit. When a state has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws but not necessarily to identical treatment with domestic corporations.

In Santa Clara County v. Southern Pacific Railroad (1886), the court reporter included a statement by Chief Justice Morrison Waite in the decision's headnote:
The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.
This dictum, which established that corporations enjoyed personhood under the Equal Protection Clause, was repeatedly reaffirmed by later courts. It remained the predominant view throughout the twentieth century, though it was challenged in dissents by justices such as Hugo Black and William O. Douglas. Between 1890 and 1910, Fourteenth Amendment cases involving corporations vastly outnumbered those involving the rights of blacks, 288 to 19.

In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia, 1880) or discriminating against Chinese Americans in the regulation of laundry businesses (Yick Wo v. Hopkins, 1886), as violations of the Equal Protection Clause. However, in Plessy v. Ferguson (1896), the Supreme Court held that the states could impose segregation so long as they provided similar facilities—the formation of the "separate but equal" doctrine.

The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908), holding that the states could force private actors to discriminate by prohibiting colleges from having both black and white students. By the early 20th century, the Equal Protection Clause had been eclipsed to the point that Justice Oliver Wendell Holmes, Jr. dismissed it as "the usual last resort of constitutional arguments."

Thurgood Marshall served as chief counsel in the landmark Fourteenth Amendment decision Brown v. Board of Education (1954).

The Court held to the "separate but equal" doctrine for more than fifty years, despite numerous cases in which the Court itself had found that the segregated facilities provided by the states were almost never equal, until Brown v. Board of Education (1954) reached the Court. In Brown the Court ruled that even if segregated black and white schools were of equal quality in facilities and teachers, segregation was inherently harmful to black students and so was unconstitutional. Brown met with a campaign of resistance from white Southerners, and for decades the federal courts attempted to enforce Brown's mandate against repeated attempts at circumvention. This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation. In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court ruled that race could not be the determinative factor in determining to which public schools parents may transfer their children.

In Plyler v. Doe (1982) the Supreme Court struck down a Texas statute denying free public education to illegal immigrants as a violation of the Equal Protection Clause of the Fourteenth Amendment because discrimination on the basis of illegal immigration status did not further a substantial state interest. The Court reasoned that illegal aliens and their children, though not citizens of the United States or Texas, are people "in any ordinary sense of the term" and, therefore, are afforded Fourteenth Amendment protections.

In Hernandez v. Texas (1954), the Court held that the Fourteenth Amendment protects those beyond the racial classes of white or "Negro" and extends to other racial and ethnic groups, such as Mexican Americans in this case. In the half-century following Brown, the Court extended the reach of the Equal Protection Clause to other historically disadvantaged groups, such as women and illegitimate children, although it has applied a somewhat less stringent standard than it has applied to governmental discrimination on the basis of race (United States v. Virginia (1996); Levy v. Louisiana (1968)).

The Supreme Court ruled in Regents of the University of California v. Bakke (1978) that affirmative action in the form of racial quotas in public university admissions was a violation of Title VI of the Civil Rights Act of 1964; however, race could be used as one of several factors without violating of the Equal Protection Clause or Title VI. In Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Court considered two race-conscious admissions systems at the University of Michigan. The university claimed that its goal in its admissions systems was to achieve racial diversity. In Gratz, the Court struck down a points-based undergraduate admissions system that added points for minority status, finding that its rigidity violated the Equal Protection Clause; in Grutter, the Court upheld a race-conscious admissions process for the university's law school that used race as one of many factors to determine admission. In Fisher v. University of Texas (2013), the Court ruled that before race can be used in a public university's admission policy, there must be no workable race-neutral alternative. In Schuette v. Coalition to Defend Affirmative Action (2014), the Court upheld the constitutionality of a state constitutional prohibition on the state or local use of affirmative action.

Reed v. Reed (1971), which struck down an Idaho probate law favoring men, was the first decision in which the Court ruled that arbitrary gender discrimination violated the Equal Protection Clause. In Craig v. Boren (1976), the Court ruled that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review. Reed and Craig later served as precedents to strike down a number of state laws discriminating by gender.

Since Wesberry v. Sanders (1964) and Reynolds v. Sims (1964), the Supreme Court has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats according to "one man, one vote". The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993), the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic underrepresentation in the state's congressional delegations.

The Equal Protection Clause served as the basis for the decision in Bush v. Gore (2000), in which the Court ruled that no constitutionally valid recount of Florida's votes in the 2000 presidential election could be held within the needed deadline; the decision effectively secured Bush's victory in the disputed election. In League of United Latin American Citizens v. Perry (2006), the Court ruled that House Majority Leader Tom DeLay's Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause.

State actor doctrine

Individual liberties guaranteed by the United States Constitution, other than the Thirteenth Amendment's ban on slavery, protect not against actions by private persons or entities, but only against actions by government officials. Regarding the Fourteenth Amendment, the Supreme Court ruled in Shelley v. Kraemer (1948): "[T]he action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." The court added in Civil Rights Cases (1883): "It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws." Vindication of federal constitutional rights are limited to those situations where there is "state action" meaning action of government officials who are exercising their governmental power. In Ex parte Virginia (1880), the Supreme Court found that the prohibitions of the Fourteenth Amendment "have reference to actions of the political body denominated by a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State."

There are however instances where people are the victims of civil-rights violations that occur in circumstances involving both government officials and private actors. In the 1960s, the United States Supreme Court adopted an expansive view of state action opening the door to wide-ranging civil-rights litigation against private actors when they act as state actors (i.e., acts done or otherwise "sanctioned in some way" by the state). The Court found that the state action doctrine is equally applicable to denials of privileges or immunities, due process, and equal protection of the laws.

The critical factor in determining the existence of state action is not governmental involvement with private persons or private corporations, but "the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."

The Supreme Court asserted that plaintiffs must establish not only that a private party "acted under color of the challenged statute, but also that its actions are properly attributable to the State. [...]"  "And the actions are to be attributable to the State apparently only if the State compelled the actions and not if the State merely established the process through statute or regulation under which the private party acted."

The rules developed by the Supreme Court for business regulation are that (1) the "mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment," and (2) "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State."

Apportionment of representation in House of Representatives

Under Article I, Section 2, Clause 3, the basis of representation of each state in the House of Representatives was determined by adding three-fifths of each state's slave population to its free population. Because slavery (except as punishment for crime) had been abolished by the Thirteenth Amendment, the freed slaves would henceforth be given full weight for purposes of apportionment. This situation was a concern to the Republican leadership of Congress, who worried that it would increase the political power of the former slave states, even as they continued to deny freed slaves the right to vote.

Two solutions were considered:
  • reduce the Congressional representation of the former slave states (for example, by basing representation on the number of legal voters rather than the number of inhabitants)
  • guarantee freed slaves the right to vote
On January 31, 1866, the House of Representatives voted in favor of a proposed constitutional amendment that would reduce a state's representation in the House in proportion to which that state used "race or color" as a basis to deny the right to vote in that state. The amendment failed in the Senate, partly because radical Republicans foresaw that states would be able to use ostensibly race-neutral criteria, such as educational and property qualifications, to disenfranchise the freed slaves without negative consequence. So the amendment was changed to penalize states that denied the vote to male citizens over twenty-one for any reason other than participation in crime. Later, the Fifteenth Amendment was adopted to guarantee the right to vote could not be denied based on race or color.
The effect of Section 2 was twofold:
  • Although the three-fifths clause was not formally repealed, it was effectively removed from the Constitution. In the words of the Supreme Court in Elk v. Wilkins, Section 2 "abrogated so much of the corresponding clause of the original Constitution as counted only three-fifths of such persons [slaves]".
  • It was intended to penalize, by means of reduced Congressional representation, states that withheld the franchise from adult male citizens for any reason other than participation in crime. This, it was hoped, would induce the former slave states to recognize the political rights of the former slaves, without directly forcing them to do so—something that it was thought the states would not accept.

Enforcement

The first reapportionment after the enactment of the Fourteenth Amendment occurred in 1873, based on the 1870 census. Congress appears to have attempted to enforce the provisions of Section 2, but was unable to identify enough disenfranchised voters to make a difference to any state's representation. In the implementing statute, Congress added a provision stating that
should any state, after the passage of this Act, deny or abridge the right of any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendments to the Constitution, article fourteen, section two, except for participation in rebellion or other crime, the number of Representatives apportioned in this act to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State.
A nearly identical provision remains in federal law to this day.

Despite this legislation, in subsequent reapportionments, no change has ever been made to any state's Congressional representation on the basis of the Amendment. Bonfield, writing in 1960, suggested that "[t]he hot political nature of such proposals has doomed them to failure". Aided by this lack of enforcement, southern states continued to use pretexts to prevent many blacks from voting until the passage of the Voting Rights Act of 1965.

In the Fourth Circuit case of Saunders v Wilkins (1945), Saunders claimed that Virginia should have its Congressional representation reduced because of its use of a poll tax and other voting restrictions. The plaintiff sued for the right to run for Congress at large in the state, rather than in one of its designated Congressional districts. The lawsuit was dismissed as a political question.

Influence

Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment, but the Supreme Court acknowledged the provisions of Section 2 in some later decisions. In Minor v. Happersett (1875), the Supreme Court cited Section 2 as supporting its conclusion that the right to vote was not among the "privileges and immunities of citizenship" protected by Section 1. In Richardson v. Ramirez (1974), the Court cited Section 2 as justifying the states disenfranchising felons. In Hunter v. Underwood (1985), a case involving disenfranchising black misdemeanants, the Supreme Court concluded that the Tenth Amendment cannot save legislation prohibited by the subsequently enacted Fourteenth Amendment. More specifically the Court concluded that laws passed with a discriminatory purpose are not excepted from the operation of the Equal Protection Clause by the "other crime" provision of Section 2. The Court held that Section 2 "was not designed to permit the purposeful racial discrimination [...] which otherwise violates [Section] 1 of the Fourteenth Amendment."

Criticism

Abolitionist leaders criticized the amendment's failure to specifically prohibit the states from denying people the right to vote on the basis of race.

Section 2 protects the right to vote only of adult males, not adult females, making it the only provision of the Constitution to explicitly discriminate on the basis of sex. Section 2 was condemned by women's suffragists, such as Elizabeth Cady Stanton and Susan B. Anthony, who had long seen their cause as linked to that of black rights. The separation of black civil rights from women's civil rights split the two movements for decades.

Participants in rebellion

Section 3 prohibits the election or appointment to any federal or state office of any person who had held any of certain offices and then engaged in insurrection, rebellion, or treason. However, a two-thirds vote by each House of the Congress can override this limitation. In 1898, the Congress enacted a general removal of Section 3's limitation. In 1975, the citizenship of Confederate general Robert E. Lee was restored by a joint congressional resolution, retroactive to June 13, 1865. In 1978, pursuant to Section 3, the Congress posthumously removed the service ban from Confederate president Jefferson Davis.

Section 3 was used to prevent Socialist Party of America member Victor L. Berger, convicted of violating the Espionage Act for his anti-militarist views, from taking his seat in the House of Representatives in 1919 and 1920.

Validity of public debt

Section 4 confirmed the legitimacy of all public debt appropriated by the Congress. It also confirmed that neither the United States nor any state would pay for the loss of slaves or debts that had been incurred by the Confederacy. For example, during the Civil War several British and French banks had lent large sums of money to the Confederacy to support its war against the Union. In Perry v. United States (1935), the Supreme Court ruled that under Section 4 voiding a United States bond "went beyond the congressional power."

The debt-ceiling crises of 2011 and 2013 raised the question of what is the President's authority under Section 4. Some, such as legal scholar Garrett Epps, fiscal expert Bruce Bartlett and Treasury Secretary Timothy Geithner, have argued that a debt ceiling may be unconstitutional and therefore void as long as it interferes with the duty of the government to pay interest on outstanding bonds and to make payments owed to pensioners (that is, Social Security and Railroad Retirement Act recipients). Legal analyst Jeffrey Rosen has argued that Section 4 gives the President unilateral authority to raise or ignore the national debt ceiling, and that if challenged the Supreme Court would likely rule in favor of expanded executive power or dismiss the case altogether for lack of standing. Erwin Chemerinsky, professor and dean at University of California, Irvine School of Law, has argued that not even in a "dire financial emergency" could the President raise the debt ceiling as "there is no reasonable way to interpret the Constitution that [allows him to do so]". Jack Balkin, Knight Professor of Constitutional Law at Yale University, opined that like Congress the President is bound by the Fourteenth Amendment, for otherwise, he could violate any part of the amendment at will. Because the President must obey the Section 4 requirement not to put the validity of the public debt into question, Balkin argued that President Obama is obliged "to prioritize incoming revenues to pay the public debt: interest on government bonds and any other 'vested' obligations. What falls into the latter category is not entirely clear, but a large number of other government obligations—and certainly payments for future services—would not count and would have to be sacrificed. This might include, for example, Social Security payments."

Power of enforcement

Section 5, also known as the Enforcement Clause of the Fourteenth Amendment, enables Congress to pass laws enforcing the amendment's other provisions. In the Civil Rights Cases (1883), the Supreme Court interpreted Section 5 narrowly, stating that "the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation". In other words, the amendment authorizes Congress to pass laws only to combat violations of the rights protected in other sections.

In Katzenbach v. Morgan (1966), the Court upheld Section 4(e) of the Voting Rights Act of 1965, which prohibits certain forms of literacy requirements as a condition to vote, as a valid exercise of Congressional power under Section 5 to enforce the Equal Protection Clause. The Court ruled that Section 5 enabled Congress to act both remedially and prophylactically to protect the rights guaranteed by the amendment. However, in City of Boerne v. Flores (1997), the Court narrowed Congress's enforcement power, holding that Congress may not enact legislation under Section 5 that substantively defines or interprets Fourteenth Amendment rights. The Court ruled that legislation is valid under Section 5 only if there is a "congruence and proportionality" between the injury to a person's Fourteenth Amendment right and the means Congress adopted to prevent or remedy that injury.
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Equal justice under law

From Wikipedia, the free encyclopedia

The front of the Supreme Court Building, including the West Pediment.

Equal justice under law is a phrase engraved on the front of the United States Supreme Court building in Washington D.C. It is also a societal ideal that has influenced the American legal system.
The phrase was proposed by the building's architects, and then approved by judges of the Court in 1932. It is based upon Fourteenth Amendment jurisprudence, and has historical antecedents dating back to ancient Greece.

Proposed by architects and approved by justices

Justice Van Devanter (left) and Chief Justice Hughes

This phrase was suggested in 1932 by the architectural firm that designed the building. Chief Justice Charles Evans Hughes and Justice Willis Van Devanter subsequently approved this inscription, as did the United States Supreme Court Building Commission which Hughes chaired (and on which Van Devanter served).

The architectural firm that proposed the phrase was headed by Cass Gilbert, though Gilbert himself was much more interested in design and arrangement, than in meaning. Thus, according to David Lynn who at that time held the position of Architect of the Capitol, the two people at Gilbert's firm who were responsible for the slogan "equal justice under law" were Gilbert's son (Cass Gilbert, Jr.) and Gilbert's partner, John R. Rockart.

In 1935, the journalist Herbert Bayard Swope objected to Chief Justice Hughes about this inscription, urging that the word "equal" be removed because such a "qualification" renders the phrase too narrow; the equality principle would still be implied without that word, Swope said. Hughes refused, writing that it was appropriate to "place a strong emphasis upon impartiality".

This legal soundbite atop the Court is perceived differently by different people, sometimes as ostentatious, often as profound, and occasionally as vacuous. According to law professor Jim Chen, it is common for people to "suggest that disagreement with some contestable legal proposition or another would be tantamount to chiseling or sandblasting 'Equal Justice Under Law' from the Supreme Court's portico." The phrase may be perceived in a variety of ways, but it very distinctly does not say "equal law under justice", which would have meant that the judiciary can prioritize justice over law.

Based upon Fourteenth Amendment jurisprudence

The words "equal justice under law" paraphrase an earlier expression coined in 1891 by the Supreme Court. In the case of Caldwell v. Texas, Chief Justice Melville Fuller wrote on behalf of a unanimous Court as follows, regarding the Fourteenth Amendment: "the powers of the States in dealing with crime within their borders are not limited, but no State can deprive particular persons or classes of persons of equal and impartial justice under the law." The last seven words are summarized by the inscription on the U.S. Supreme Court building.

Chief Justice Fuller (front center) wrote for a unanimous Court in Caldwell. In this 1899 photo, Justice Harlan is seated to his right, and Justice Peckham is standing to Harlan's right.
 
Later in 1891, Fuller's opinion for the Court in Leeper v. Texas again referred to "equal...justice under...law". Like Caldwell, the Leeper opinion was unanimous, in contrast to the Fuller Court's major disagreements about equality issues in other cases such as Plessy v. Ferguson.

In both Caldwell and Leeper, murder indictments were challenged because they allegedly gave inadequate notice of the crimes being charged. The Court upheld the indictments because they followed the form required by Texas law. In a case nine years later (Maxwell v. Dow), the Court quoted the "equal...justice under...law" phrase that it had used in Caldwell and Leeper, to make the point that Utah could devise its own criminal procedure, as long as defendants are "proceeded against by the same kind of procedure and ... have the same kind of trial, and the equal protection of the laws is secured to them."

In the 1908 case of Ughbanks v. Armstrong, the Fuller Court yet again discussed the Fourteenth Amendment in similar terms, but this time mentioning punishments: "The last-named Amendment was not intended to, and does not, limit the powers of a State in dealing with crime committed within its own borders or with the punishment thereof, although no State can deprive particular persons or classes of persons of equal and impartial justice under the law."

Ughbanks was a burglary case, and the opinion was written for the Court by Justice Rufus Peckham, while Justice John Marshall Harlan was the sole dissenter. The Court would later reject the idea that the Fourteenth Amendment does not limit punishments (see the 1962 case of Robinson v. California).
In the years since moving into their present building, the Supreme Court has often connected the words "equal justice under law" with the Fourteenth Amendment. For example, in the 1958 case of Cooper v. Aaron, the Court said: "The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal."

The words "equal justice under law" are not in the Constitution, which instead says that no state shall "deny to any person within its jurisdiction the equal protection of the laws." From an architectural perspective, the main advantage of the former over the latter was brevity — the Equal Protection Clause was not short enough to fit on the pediment given the size of the letters to be used.

Following ancient tradition

Pericles, Greek statesman and general

In the funeral oration that he delivered in 431 BC, the Athenian leader Pericles encouraged belief in what we now call equal justice under law. Thus, when Chief Justice Fuller wrote his opinion in Caldwell v. Texas, he was by no means the first to discuss this concept. There are several different English translations of the relevant passage in Pericles' funeral oration.

Here is Pericles discussing "equal justice" according to the English translation by Richard Crawley in 1874:
Our constitution does not copy the laws of neighbouring states; we are rather a pattern to others than imitators ourselves. Its administration favours the many instead of the few; this is why it is called a democracy. If we look to the laws, they afford equal justice to all in their private differences; if no social standing, advancement in public life falls to reputation for capacity, class considerations not being allowed to interfere with merit; nor again does poverty bar the way, if a man is able to serve the state, he is not hindered by the obscurity of his condition.
The English translation by Benjamin Jowett in 1881 likewise had Pericles saying: "the law secures equal justice to all alike in their private disputes". And, the English translation by Rex Warner in 1954 had Pericles saying: "there exists equal justice to all and alike in their private disputes". The funeral oration by Pericles was published in Thucydides’ History of the Peloponnesian War, of which there are several other English translations.

As quoted above, Pericles said that a person's wealth or prominence should not influence his eligibility for public employment or affect the justice he receives. Similarly, Chief Justice Hughes defended the inscription "equal justice under law" by referring to the judicial oath of office, which requires judges to "administer justice without respect to persons, and do equal right to the poor and to the rich". Decades later, Supreme Court Justice Thurgood Marshall made a similar point: "The principles which would have governed with $10,000 at stake should also govern when thousands have become billions. That is the essence of equal justice under law."
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Is–ought problem

From Wikipedia, the free encyclopedia
 
David Hume raised the is–ought problem in his Treatise of Human Nature.

The is–ought problem, as articulated by the Scottish philosopher and historian David Hume (1711–76), states that many writers make claims about what ought to be, based on statements about what is. Hume found that there seems to be a significant difference between positive statements (about what is) and prescriptive or normative statements (about what ought to be), and that it is not obvious how one can coherently move from descriptive statements to prescriptive ones. The is–ought problem is also known as Hume's law, or Hume's guillotine.

A similar view is defended by G. E. Moore's open-question argument, intended to refute any identification of moral properties with natural properties. This so-called naturalistic fallacy stands in contrast to the views of ethical naturalists.

Overview

Hume discusses the problem in book III, part I, section I of his book, A Treatise of Human Nature (1739):
In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention would subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason.
Hume asks, given knowledge of the way the universe is, in what sense can we say it ought to be different?

Hume calls for caution against such inferences in the absence of any explanation of how the ought-statements follow from the is-statements. But how exactly can an "ought" be derived from an "is"? The question, prompted by Hume's small paragraph, has become one of the central questions of ethical theory, and Hume is usually assigned the position that such a derivation is impossible. This complete severing of "is" from "ought" has been given the graphic designation of Hume's Guillotine.

Implications

The apparent gap between "is" statements and "ought" statements, when combined with Hume's fork, renders "ought" statements of dubious validity. Hume's fork is the idea that all items of knowledge are either based on logic and definitions, or else on observation. If the is–ought problem holds, then "ought" statements do not seem to be known in either of these two ways, and it would seem that there can be no moral knowledge. Moral skepticism and non-cognitivism work with such conclusions.
Critics of atheism have argued that the is–ought distinction threatens the validity of secular ethics, by, in the critics' view, rendering secular ethical systems subjective and arbitrary.

Responses

Oughts and goals

Few debate that one ought to run quickly if one's goal is to win a race. A tougher question may be whether one "morally ought" to want to win a race in the first place.

Ethical naturalists contend that moral truths exist, and that their truth value relates to facts about physical reality. Many modern naturalistic philosophers see no impenetrable barrier in deriving "ought" from "is", believing it can be done whenever we analyze goal-directed behavior. They suggest that a statement of the form "In order for agent A to achieve goal B, A reasonably ought to do C" exhibits no category error and may be factually verified or refuted. "Oughts" exist, then, in light of the existence of goals. A counterargument to this response is that it merely pushes back the 'ought' to the subjectively valued 'goal' and thus provides no fundamentally objective basis to one's goals which, consequentially, provides no basis of distinguishing moral value of fundamentally different goals. A possible basis for an objective, moral realist, morality might be an appeal to teleonomy.

This is similar to work done by moral philosopher Alasdair MacIntyre, who attempts to show that because ethical language developed in the West in the context of a belief in a human telos—an end or goal—our inherited moral language, including terms such as good and bad, have functioned, and function, to evaluate the way in which certain behaviors facilitate the achievement of that telos. In an evaluative capacity, therefore, good and bad carry moral weight without committing a category error. For instance, a pair of scissors that cannot easily cut through paper can legitimately be called bad since it cannot fulfill its purpose effectively. Likewise, if a person is understood as having a particular purpose, then behaviour can be evaluated as good or bad in reference to that purpose. In plainer words, a person is acting good when that person fulfills that person's purpose.

Even if the concept of an "ought" is meaningful, this need not involve morality. This is because some goals may be morally neutral, or (if they exist) against what is moral. A poisoner might realize his victim has not died and say, for example, "I ought to have used more poison," since his goal is to murder. The next challenge of a moral realist is thus to explain what is meant by a "moral ought".

Discourse ethics

Proponents of discourse ethics argue that the very act of discourse implies certain "oughts", that is, certain presuppositions that are necessarily accepted by the participants in discourse, and can be used to further derive prescriptive statements. They therefore argue that it is incoherent to argumentatively advance an ethical position on the basis of the is–ought problem, which contradicts these implied assumptions.

Moral oughts

As MacIntyre explained, someone may be called a good person if people have an inherent purpose. Many ethical systems appeal to such a purpose. This is true of some forms of moral realism, which states that something can be wrong, even if every thinking person believes otherwise (the idea of brute fact about morality). The ethical realist might suggest that humans were created for a purpose (e.g. to serve God), especially if they are an ethical non-naturalist. If the ethical realist is instead an ethical naturalist, they may start with the fact that humans have evolved and pursue some sort of evolutionary ethics (which risks “committing” the moralistic fallacy). Not all moral systems appeal to a human telos or purpose. This is because it is not obvious that people even have any sort of natural purpose, or what that purpose would be. Although many scientists do recognize teleonomy (a tendency in nature), few philosophers appeal to it (this time, to avoid the naturalistic fallacy).

Even if oughts can be understood in relation to goals or needs, the greater challenge of ethical systems remains that of defining the nature and origins of the good, and in what sense one ought to pursue it.

Goal-dependent oughts run into problems even without an appeal to an innate human purpose. Consider cases where one has no desire to be good—whatever it is. If, for instance, a person wants to be good, and good means washing one's hands, then it seems one morally ought to wash their hands. The bigger problem in moral philosophy is what happens if someone does not want to be good, whatever its origins? Put simply, in what sense ought we to hold the goal of being good? It seems one can ask "how am I rationally required to hold 'good' as a value, or to pursue it?"

The issue above mentioned is a result of an important ethical relativist critique. Even if "oughts" depend on goals, the ought seems to vary with the person's goal. This is the conclusion of the ethical subjectivist, who says a person can only be called good according to whether they fulfill their own, self-assigned goal. Alasdair MacIntyre himself suggests that a person's purpose comes from their culture, making him a sort of ethical relativist. Ethical relativists acknowledge local, institutional facts about what is right, but these are facts that can still vary by society. Thus, without an objective "moral goal", a moral ought is difficult to establish. G. E. M. Anscombe was particularly critical of the word "ought" for this reason; understood as "We need such and such, and the only way to get it is this way"—a person may need something immoral, or else find that their noble need requires immoral action.

If moral goals depend on private assumptions or public agreement, so may morality as a whole. For example, Canada might call it good to maximize global welfare, where a citizen, Alice, calls it good to focus on herself, and then her family, and finally her friends (with little empathy for strangers). It does not seem that Alice can be objectively or rationally bound—without regard to her personal values nor those of groups of other people—to act a certain way. In other words, we may not be able to say "You just should do this". Moreover, persuading her to help strangers would necessarily mean appealing to values she already possesses (or else we would never even have a hope of persuading her). This is another interest of normative ethics—questions of binding forces.

There may be responses to the above relativistic critiques. As mentioned above, ethical realists that are non-natural can appeal to God's purpose for humankind. On the other hand, naturalistic thinkers may posit that valuing people's well-being is somehow 'obviously' the purpose of ethics, or else the only relevant purpose worth talking about. This is the move made by natural law, scientific moralists and some utilitarians.

Institutional facts

John Searle also attempts to derive "ought" from "is". He tries to show that the act of making a promise places one under an obligation by definition, and that such an obligation amounts to an "ought". This view is still widely debated, and to answer criticisms, Searle has further developed the concept of institutional facts, for example, that a certain building is in fact a bank and that certain paper is in fact money, which would seem to depend upon general recognition of those institutions and their value.

Indefinables

Indefinables are concepts so global that they cannot be defined; rather, in a sense, they themselves, and the objects to which they refer, define our reality and our ideas. Their meanings cannot be stated in a true definition, but their meanings can be referred to instead by being placed with their incomplete definitions in self-evident statements, the truth of which can be tested by whether or not it is impossible to think the opposite without a contradiction. Thus, the truth of indefinable concepts and propositions using them is entirely a matter of logic.

An example of the above is that of the concepts "finite parts" and "wholes"; they cannot be defined without reference to each other and thus with some amount of circularity, but we can make the self-evident statement that "the whole is greater than any of its parts", and thus establish a meaning particular to the two concepts.

These two notions being granted, it can be said that statements of "ought" are measured by their prescriptive truth, just as statements of "is" are measured by their descriptive truth; and the descriptive truth of an "is" judgment is defined by its correspondence to reality (actual or in the mind), while the prescriptive truth of an "ought" judgment is defined according to a more limited scope—its correspondence to right desire (conceivable in the mind and able to be found in the rational appetite, but not in the more "actual" reality of things independent of the mind or rational appetite).

To some, this may immediately suggest the question: "How can we know what is a right desire if it is already admitted that it is not based on the more actual reality of things independent of the mind?" The beginning of the answer is found when we consider that the concepts "good", "bad", "right" and "wrong" are indefinables. Thus, right desire cannot be defined properly, but a way to refer to its meaning may be found through a self-evident prescriptive truth.

That self-evident truth which the moral cognitivist claims to exist upon which all other prescriptive truths are ultimately based is: One ought to desire what is really good for one and nothing else. The terms "real good" and "right desire" cannot be defined apart from each other, and thus their definitions would contain some degree of circularity, but the stated self-evident truth indicates a meaning particular to the ideas sought to be understood, and it is (the moral cognitivist might claim) impossible to think the opposite without a contradiction. Thus combined with other descriptive truths of what is good (goods in particular considered in terms of whether they suit a particular end and the limits to the possession of such particular goods being compatible with the general end of the possession of the total of all real goods throughout a whole life), a valid body of knowledge of right desire is generated.

Functionalist counterexamples

Several counterexamples have been offered by philosophers claiming to show that there are cases when an "ought" logically follows from an "is." First of all, Hilary Putnam, by tracing back the quarrel to Hume's dictum, claims fact/value entanglement as an objection, since the distinction between them entails a value. A. N. Prior points out, from the statement "He is a sea captain," it logically follows, "He ought to do what a sea captain ought to do." Alasdair MacIntyre points out, from the statement "This watch is grossly inaccurate and irregular in time-keeping and too heavy to carry about comfortably," the evaluative conclusion validly follows, "This is a bad watch." John Searle points out, from the statement "Jones promised to pay Smith five dollars," it logically follows that "Jones ought to pay Smith five dollars." The act of promising by definition places the promiser under obligation.

Moral realism

Philippa Foot adopts a moral realist position, criticizing the idea that when evaluation is superposed on fact there has been a "committal in a new dimension." She introduces, by analogy, the practical implications of using the word "injury." Not just anything counts as an injury. There must be some impairment. When we suppose a man wants the things the injury prevents him from obtaining, haven’t we fallen into the old naturalist fallacy?
It may seem that the only way to make a necessary connection between 'injury' and the things that are to be avoided, is to say that it is only used in an 'action-guiding sense' when applied to something the speaker intends to avoid. But we should look carefully at the crucial move in that argument, and query the suggestion that someone might happen not to want anything for which he would need the use of hands or eyes. Hands and eyes, like ears and legs, play a part in so many operations that a man could only be said not to need them if he had no wants at all.
Foot argues that the virtues, like hands and eyes in the analogy, play so large a part in so many operations that it is implausible to suppose that a committal in a non-naturalist dimension is necessary to demonstrate their goodness.
Philosophers who have supposed that actual action was required if 'good' were to be used in a sincere evaluation have got into difficulties over weakness of will, and they should surely agree that enough has been done if we can show that any man has reason to aim at virtue and avoid vice. But is this impossibly difficult if we consider the kinds of things that count as virtue and vice? Consider, for instance, the cardinal virtues, prudence, temperance, courage and justice. Obviously any man needs prudence, but does he not also need to resist the temptation of pleasure when there is harm involved? And how could it be argued that he would never need to face what was fearful for the sake of some good? It is not obvious what someone would mean if he said that temperance or courage were not good qualities, and this not because of the 'praising' sense of these words, but because of the things that courage and temperance are.

Misunderstanding

Hilary Putnam argues philosophers that accept Hume's "is–ought" distinction reject his reasons in making this, and thus undermine the entire claim.

Various scholars have also indicated that, in the very work where Hume argues for the is–ought problem, Hume himself derives an "ought" from an "is". Such seeming inconsistencies in Hume have led to an ongoing debate over whether Hume actually held to the is–ought problem in the first place, or whether he meant that ought inferences can be made but only with good argumentation.
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