The Fourteenth Amendment: Underappreciated, but more important than ever

Today marks the 150th anniversary of the adoption of the Constitution’s Fourteenth Amendment. A key part of the nation’s second founding, the Fourteenth Amendment finally made good on the Declaration of Independence’s promise of individual liberty, equality and the pursuit of happiness free of unnecessary government interference, including from state governments.

That amendment declares: “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.” This simple, underappreciated provision has been responsible for some of the most important constitutional developments (good and bad) over the past 150 years.

The Fourteenth Amendment’s guarantee of equal protection gave us Brown v. Board of Education, ending racial segregation in public schools. If there were a Mount Rushmore for Supreme Court opinions, Brown undoubtedly would be on it. The result of a 15-year NAACP effort to win legal recognition of racial equality, the unanimous Brown decision helped jump-start the civil rights movement that ended shameful Jim Crow laws. Thirteen years later, the same clause of the Fourteenth Amendment would be used to strike down bans on interracial marriages in Loving v. Virginia.

The Fourteenth Amendment continues to be a key tool in the push for social progress. In recent years, the right to privacy and family autonomy has been expanded to people previously ignored. Although some of those decisions were controversial in the moment, that controversy quickly waned as experience brought us to recognize our shared humanity.

The Fourteenth Amendment also protects our right to speak, free of punishment or intimidation by state governments. For the past 60 years, the Supreme Court has carried on a free speech revolution, protecting the rights of students to protest the Vietnam War, prohibiting public schools from censoring controversial books, and blocking state retaliation against groups that express unpopular opinions. Thanks to the Fourteenth Amendment, the Supreme Court has become the vanguard protecting the free exchange of ideas, which is more important than ever as colleges and other institutions turn against this core American value.

The Fourteenth Amendment protects our homes from government spying and confiscation. Because a man’s home is his castle, courts have insisted that the police obtain a warrant before barging in, absent extraordinary circumstances. They also prevented governments from abusing their power to force property owners to give up their property without compensation. In Nollan v. California Coastal Commission, a case Pacific Legal Foundation won in the Supreme Court in 1987, the late Justice Antonin Scalia explained that states could not use the permit process to engage in “an out-and-out plan of extortion” by demanding property owners pay off the government to use their own private property.

Unfortunately, not all the news is good. Shortly after the Fourteenth Amendment was ratified, the Supreme Court neutered one of its key protections for economic liberty. The results have been predictable: government has protected entrenched and politically connected businesses at the expense of would be competitors. The harms from this arbitrary favoritism have fallen most heavily on the poor and on minority entrepreneurs, who find themselves locked out of the market and denied the chance to pursue their dreams.

However, that may be changing. The Obama administration strongly opposed excess state occupational licensing, a policy the Trump administration has continued. Courts, too, are beginning to come around, thanks to the tireless efforts of nonprofit groups dedicated to inclusive and open markets. One visible example of economic liberty breaking through state-sponsored monopolies has been the growth of Uber and other ride-sharing apps, allowing a new generation of entrepreneurs to work for themselves on their own terms.

Today’s America likely couldn’t exist without the rights enshrined in the Fourteenth Amendment. We owe a great debt to the people who gave us the Fourteenth Amendment and the civil rights organizations that have fought for decades to convert its lofty words into reality. We repay that debt by continuing their work to form a more perfect union committed to the ideals of liberty, equality and justice for all.

Jonathan Wood is an attorney at Pacific Legal Foundation, which litigates to enforce the Constitution’s guarantee of individual liberty, and an adjunct fellow at the Property and Environment Research Center (PERC), a conservation and research institute in Bozeman, Montana, dedicated to free-market environmentalism.