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The Unitary Fourteenth Amendment

David H. Gans

Benjamin N. Cardozo School of Law

Cardozo Legal Studies Research Paper No. 196
Emory Law Journal, Vol. 56, No. 907, 2007

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.

Number of Pages in PDF File: 35

Keywords: Fourteenth Amendment, constitutional law, abortion

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Date posted: June 20, 2007  

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

Contact Information

David H. Gans (Contact Author)
Benjamin N. Cardozo School of Law
55 Fifth Ave.
New York, NY 10003
United States

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