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Introduction

The Fourteenth Amendment to the United States

Constitution is the focus of a vast body of modern

American law and litigation--and a never-ending source of

political and legal controversy.  Written and ratified

during Reconstruction, in the aftermath of the Civil War,

the amendment, in essence, provides federal remedies for

state violations of individual rights in areas as diverse

as religion, speech, privacy, economic liberty, property

rights, civil rights, and civil and criminal procedure.

As section one of the amendment states:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside.  No State shall make

or enforce any law which shall abridge the priv-

ileges 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.

Precisely what rights are protected by that broad language

is the main source of controversy, of course, and the main

subject of this study.  What is clear, however, is that

section one authorizes courts, by implication, to adjudi-

cate claims brought pursuant to the amendment, whereas

section five authorizes Congress "to enforce, by appropri-

ate legislation, the provisions of this article."

By giving the courts and Congress such sweeping

authority over disputes between states and individuals, the

amendment altered fundamentally the original relationship

between the federal government and the states.  For the

first time, constitutional guarantees against the federal

government could be raised against state governments as

well.  Given that the Constitution establishes a federal

government of enumerated and thus limited powers--leaving

most power with the states and the people, as the Tenth

Amendment makes clear--it is not surprising that in the

wake of the Fourteenth Amendment we have seen repeated

tests of the proper scope of both federal and state power

and, as a corollary, the proper basis and content of indi-

vidual rights.  While the players have changed names and

sides over the years, modern liberals have tended to favor

restricting state power, except in the areas of economic

regulation and social welfare; modern conservatives, by

contrast, have tended to favor allowing states a wide