The Unitary Fourteenth Amendment

35 Pages Posted: 20 Jun 2007

Abstract

Modern constitutional law routinely treats the three core protections of Section 1 of the Fourteenth Amendment - the Privileges or Immunities Clause, the Equal Protection Clause, and the Due Process Clause - in isolation. This article argues that these provisions are in fact interlocking safeguards of equal citizenship, and that courts should interpret them accordingly. This Article's unitary reading of the Fourteenth Amendment would alter constitutional doctrine in two important ways. First, it would reinvigorate the Privileges and Immunities Clause, Section 1's explicit textual direction to protect the fundamental rights of citizens, requiring courts to reason about constitutional rights in relation to citizenship. Second, constitutional doctrine would attend more carefully to Section 1's overarching purpose of protecting marginalized social groups from the tyranny of the majority. On this view, courts should analyze Section 1's guarantees of liberty, equality, and procedural fairness as seamless protections of the rights of both individuals and the social groups to which they belong, not merely as the personal rights of solitary individuals. The Article concludes by applying its unitary reading to the right to choose abortion.

Keywords: Fourteenth Amendment, constitutional law, abortion

Suggested Citation

Gans, David H., The Unitary Fourteenth Amendment. Cardozo Legal Studies Research Paper No. 196, Emory Law Journal, Vol. 56, No. 907, 2007, Available at SSRN: https://ssrn.com/abstract=993909

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