Fourteenth Amendment: Citizenship, Due Process & Equal Protection

Ratified on July 9, 1868, the Fourteenth Amendment to the U.S. Constitution defines who counts as an American citizen, forbids state governments from taking a person’s life, liberty, or property without fair legal process, and guarantees every person equal protection under the law. Those three guarantees sit in Section 1. Four more sections handle how congressional seats are apportioned, who is barred from holding office after an insurrection, the validity of the federal debt, and Congress’s power to enforce everything the amendment promises. Together, the five sections touch nearly every major constitutional dispute in the country, from school segregation to marriage to the debt ceiling.

Who Is a Citizen

Section 1 opens with a rule that sounds simple and did enormous work: anyone born or naturalized in the United States, and subject to its jurisdiction, is a citizen of both the United States and the state where they live.¹

That sentence established birthright citizenship and erased the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which had ruled that a person of African descent whose ancestors had been brought to the country and sold as slaves was not a “citizen” under the Constitution and could not sue in federal court.² By tying citizenship to the place of birth rather than to ancestry, race, or prior legal status, the amendment took away the government’s ability to selectively deny people their legal identity.

The phrase “subject to the jurisdiction thereof” means the person must be under U.S. legal authority at birth. That covers virtually everyone born on American soil, including the children of immigrants. The recognized exception is narrow: children born to foreign diplomats who hold sovereign immunity, since diplomatic personnel are technically under the jurisdiction of their home country.

The clause also reached beyond human beings. In Santa Clara County v. Southern Pacific Railroad (1886), the Supreme Court declared corporations to be “persons” within the meaning of the Fourteenth Amendment and entitled to its protections.³ That declaration, made as a preliminary statement rather than in the formal opinion, has been cited as precedent ever since.

Due Process

No state may deprive any person of life, liberty, or property without due process of law.¹ Courts read this single sentence as containing two distinct requirements.

Procedural Due Process

Before the government takes your freedom, your property, or your life, it has to follow fair procedures. At minimum, you get notice of what the government intends to do and an opportunity to be heard before a neutral decision-maker.⁴ The government cannot simply seize your house, revoke your professional license, or lock you up without giving you a chance to contest the action.

How much procedure is enough depends on the stakes. A parking ticket requires less than a criminal prosecution. Courts weigh the private interest at stake, the risk of an erroneous deprivation under current procedures, and the government’s interest in efficiency. Higher stakes for the individual mean more procedural safeguards.

Substantive Due Process

Substantive due process asks a different question: whether the government had any business interfering in the first place. The Supreme Court has read the Due Process Clause as protecting certain fundamental rights that are so deeply rooted in the nation’s history and tradition that no amount of fair procedure can justify taking them away.⁵

The recognized list has grown over time. The Court has struck down government actions that infringed on the right to use contraceptives, the right to marry, and the right to make decisions about the care and upbringing of one’s children. In Obergefell v. Hodges (2015), the Court held that the fundamental right to marry extends to same-sex couples under both the Due Process and Equal Protection Clauses.⁶ When a fundamental right is at stake, courts apply strict scrutiny, and the government rarely wins.

Incorporation of the Bill of Rights

The Bill of Rights originally restricted only the federal government. The First Amendment says “Congress shall make no law,” not “no government shall make a law.” Through the Due Process Clause of the Fourteenth Amendment, the Supreme Court has applied most of the Bill of Rights to state and local governments as well. This process, called selective incorporation, works one right at a time. The Court asks whether a particular right is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”⁷

By now, nearly every major provision of the Bill of Rights binds the states: free speech, free exercise of religion, the right to keep and bear arms, protection against unreasonable searches, the right to a jury trial in criminal cases, and protection against cruel and unusual punishment. In 2019, the Court incorporated the Eighth Amendment’s Excessive Fines Clause in Timbs v. Indiana, holding that the protection applies identically whether the fine comes from the federal government or a state.⁸

A few provisions remain unincorporated. The Fifth Amendment’s requirement of a grand jury indictment in serious criminal cases does not bind the states, nor does the Seventh Amendment’s guarantee of a jury trial in civil cases. The Third Amendment’s prohibition on quartering soldiers has never been formally incorporated.

One detail matters for anyone thinking about immigration status: due process protections apply to every “person” within a state’s jurisdiction, not only to citizens. Noncitizens, including undocumented immigrants, are entitled to fair procedures before the government can take their liberty or property.

Equal Protection

No state may deny any person the equal protection of the laws.¹ This is the main tool for challenging government discrimination. When a law treats one group differently from another, courts evaluate whether the distinction is constitutional by applying one of three levels of scrutiny.

Strict scrutiny applies to classifications based on race, national origin, religion, or alienage. The government must show that the law serves a compelling interest and is narrowly tailored to achieve that interest. Very few laws survive.⁹
Intermediate scrutiny applies to classifications based on gender or legitimacy of birth. The government must show that the law furthers an important interest and that the means used are substantially related to that interest.⁹
Rational basis review is the default for everything else, including most economic regulations. The challenger has to prove that the law is not rationally related to any legitimate government interest. Most laws survive.

The Equal Protection Clause powered some of the most consequential Supreme Court decisions of the twentieth century. In Brown v. Board of Education (1954), the Court held that segregating public schools by race violated the Fourteenth Amendment, even where the physical facilities were equal, ending the “separate but equal” doctrine that had stood since 1896.¹⁰ In Loving v. Virginia (1967), the Court struck down state laws banning interracial marriage, holding that restricting the freedom to marry solely because of racial classifications violated the “central meaning of the Equal Protection Clause.”¹¹ Obergefell v. Hodges (2015) extended that reasoning to hold that same-sex couples cannot be denied the right to marry.⁶

The Privileges or Immunities Clause

Section 1 also prohibits states from making or enforcing laws that abridge the “privileges or immunities” of United States citizens. On paper, this looks like a sweeping guarantee. In practice, the Supreme Court gutted it almost immediately.

In the Slaughter-House Cases of 1873, the Court drew a sharp line between rights that come from state citizenship and rights that come from national citizenship, and it defined the national rights narrowly.¹² Everything else was a matter of state citizenship the Fourteenth Amendment did not touch.¹³ That ruling sidelined the clause for over a century. Most of the heavy constitutional work people assume it does is actually performed by the Due Process and Equal Protection Clauses instead.

Government Only: The State Action Limit

There is a major limitation built into the Fourteenth Amendment that catches people off guard: it only restricts government conduct. Private businesses, private individuals, and private organizations are not bound by it. The Supreme Court set this out in the Civil Rights Cases of 1883, holding that the amendment “erects no shield against merely private conduct, however discriminatory or wrongful.”¹⁴

If a private employer fires you because of your race, you cannot sue under the Fourteenth Amendment. You would instead rely on federal statutes like the Civil Rights Act of 1964, which Congress passed using its power to regulate interstate commerce. The amendment’s protections kick in only when someone acting with government authority is responsible for the discrimination, whether that person is a legislator writing a law, a police officer making an arrest, or a judge issuing a ruling.

The definition of “state action” stretches in some situations. When a private entity is deeply entangled with the government, exercises powers traditionally reserved to the state, or acts under coercion or significant encouragement of a government official, courts may treat the private entity’s conduct as state action. But the default rule holds.

Section 2: Apportionment and Voting

Section 2 addresses how seats in the House of Representatives are distributed among the states. It replaced the original Constitution’s “three-fifths” compromise by requiring that all persons in each state be counted for apportionment purposes.¹⁵

The section also includes a penalty that has never been enforced. If a state denies or abridges the right to vote of any male citizens twenty-one years of age or older (with an exception for participation in rebellion or other crime), the state’s representation in Congress is supposed to be reduced proportionally. This penalty was aimed at discouraging former Confederate states from disenfranchising Black voters, but Congress never applied it, even during the most blatant periods of voter suppression.

Much of Section 2’s original language has been effectively superseded. The Fifteenth Amendment (1870) prohibited denying the vote based on race. The Nineteenth Amendment (1920) extended voting rights to women, rendering the word “male” a constitutional artifact. The Twenty-Sixth Amendment (1971) lowered the voting age to eighteen. Section 2 remains part of the text, and its representation-reduction penalty exists as an unused enforcement tool.

Section 3: Disqualification for Insurrection

Section 3 bars anyone who previously swore an oath to support the Constitution and then engaged in insurrection or rebellion from holding federal or state office. It reaches members of Congress, presidential and vice-presidential electors, military officers, and state legislators and executive officials.¹⁶ It also covers those who gave “aid or comfort” to enemies of the United States.

The disqualification is not permanent. Congress can remove it by a two-thirds vote of each chamber.¹⁶ Congress did exactly that in 1872 when it passed the Amnesty Act to remove the disqualification from most former Confederates and their sympathizers.¹⁷ That act applied only to the Civil War era.

Section 3 lay dormant for over a century before returning to national attention after the January 6, 2021 attack on the U.S. Capitol. Several states attempted to remove candidates from ballots under the provision. In Trump v. Anderson (2024), the Supreme Court held that states have no power to enforce Section 3 against federal officeholders or candidates. Only Congress can do that, using its enforcement authority under Section 5.¹⁸ The decision effectively requires Congress to pass legislation spelling out how Section 3 disqualification works before it can be applied to federal candidates.

A criminal conviction is not required. During Reconstruction, federal prosecutors brought civil actions to remove officials linked to the Confederacy, and Congress itself refused to seat some elected members. Because Section 3 has been used so rarely, many procedural questions remain open.

Section 4: The Public Debt Clause

Section 4 declares that the validity of the public debt of the United States “shall not be questioned.” That includes debts incurred for pensions and bounties paid to those who helped suppress the rebellion.¹⁹ At the same time, it prohibited the federal government and every state from assuming or paying any debt incurred to support the Confederacy, and it voided all claims for compensation related to the emancipation of enslaved people.²⁰

The Confederate debt provisions are historical relics, but the opening language has taken on modern significance. The Supreme Court noted in Perry v. United States (1935) that the clause encompasses “whatever concerns the integrity of the public obligations” and limits Congress’s power to repudiate government bonds. That reading has surfaced in debt ceiling debates, with some legal scholars arguing that Congress cannot take actions that create substantial doubt about whether the government will meet its financial obligations. The clause applies to bonds issued before and after the amendment’s adoption.

Section 5: Congress’s Enforcement Power

The final section grants Congress the power to enforce every one of the amendment’s provisions through “appropriate legislation.”²¹ This is the engine that makes the rest of the amendment functional. Without it, the broad principles in Sections 1 through 4 would depend entirely on court litigation for their enforcement.

Using this authority, Congress has passed the landmark civil rights statutes that put the amendment’s rights into operational form and create specific remedies for individuals whose rights have been violated. The Supreme Court has held that any enforcement legislation must show “congruence and proportionality” between the constitutional violation Congress aims to prevent and the means it chooses to address it.¹⁸ Congress cannot use Section 5 as a blank check to redefine the amendment’s substance, but it has broad latitude to build enforcement frameworks around the rights the amendment already guarantees.

1
Congress.gov. U.S. Constitution – Fourteenth Amendment
2
National Archives. Dred Scott v. Sandford (1857)
3
Justia U.S. Supreme Court. Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886)
4
Congress.gov. Constitution Annotated – Procedural Due Process
5
Congress.gov. Amdt14.S1.6.1 Overview of Substantive Due Process
6
Justia U.S. Supreme Court. Obergefell v. Hodges, 576 U.S. 644 (2015)
7
Congress.gov. Modern Doctrine on Selective Incorporation of Bill of Rights
8
Supreme Court of the United States. Timbs v. Indiana, 586 U.S. 146 (2019)
9
Justia. Equal Protection Supreme Court Cases
10
National Archives. Brown v. Board of Education (1954)
11
Library of Congress. Loving v. Virginia, 388 U.S. 1 (1967)
12
Justia U.S. Supreme Court. Slaughterhouse Cases, 83 U.S. 36 (1872)
13
Congress.gov. Amdt14.S1.2.1 Privileges or Immunities of Citizens and the Slaughter-House Cases
14
Congress.gov. State Action Doctrine
15
Congress.gov. Fourteenth Amendment Section 2
16
Congress.gov. Fourteenth Amendment Section 3
17
Congressional Research Service. The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment
18
Supreme Court of the United States. Trump v. Anderson, 601 U.S. 100 (2024)
19
Congress.gov. Overview of Public Debt Clause
20
Congress.gov. Fourteenth Amendment Section 4 – Public Debt
21
Congress.gov. Fourteenth Amendment Section 5