3.13. The Fourteenth Amendment

Fourteenth Amendment Protections

The Fourteenth Amendment mandates that states do not deny their citizens’ due process of law. Due process can be summarized as making sure that the government treats people fairly. Part of fairness is giving people fair warning as to what behaviors are permitted and what behaviors are not permitted—putting people on notice of what the law is. Thus, legislators must be very careful when making new laws. They cannot make laws that are so poorly drafted such that a person of ordinary intelligence would not understand the law or that would allow police too much discretion in how they will interpret and apply the law because such a law would be considered void for vagueness.

The Fourteenth Amendment also guarantees equal protection of the law. Generally, legislatures cannot make laws that treat people differently unless the laws are rationally related to a legitimate government interest. When legislatures attempt to pass laws that treat people differently based on sex, then the court reviews the law with heightened scrutiny —  the law must be designed to achieve an important government interest. For example, laws that imply differential treatment by sex must be based on an actual physiological differences, and not archaic stereotypes. When legislatures attempt to pass laws that treat people differently based upon their race or ethnicity, then they have to have even a more compelling reason to do so, and even then, the courts, employing “strict scrutiny” are likely to declare such laws unconstitutional.

In fact, the Fourteenth Amendment is wary of differential treatment at all stages of the criminal justice process, from arrest to punishment. However, this does not mean that the courts, in their interpretation of the Fourteenth, have categorically prohibited criminal justice strategies that results in different outcomes on the basis of sex or race. In fact, some of the most prominent Fourteenth Amendment landmark cases have legitimized the ability of different criminal justice actors to consider demographic traits. For example, in the 1975 case United States v. Brignoni-Ponce, the Supreme Court ruled, unanimously, that law enforcement (in this case, Border Patrol) could not stop a vehicle, or execute a search, based solely on the presumed ethnicity or citizenship of the vehicle’s occupants. On its surface, this decision appears to outlaw racial profiling; yet, in its entirety, the Court’s decision validates the relevance of presumed ethnicity or citizenship in officers’ decisions to stop and search – as long as the suspect’s appearance is not the only “articulable fact” underlying reasonable suspicion or probably cause.

Other Court decisions interpreting the Fourteenth Amendment have made it more difficult for individual defendants or (groups of defendants) to argue that illegal discrimination led to their differential treatment in the criminal justice system. Most notably, the Supreme Court erected a nearly insurmountable standard for proving racial discrimination in McCleskey vs. Kemp – discussed below.