(Episode 34) Hooks and Concepts: The 14th Amendment, Part 2 of 3

Welcome back, Listeners, and thanks for your patience while we were away spending time with family. We pick back up with our second installment of the 14th Amendment, which focuses on these bold clauses in Section 1:

Section 1: "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 privileges 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."

The first bold section is known as the Privileges or Immunities Clause ("POI Clause") (not to be confused with the Privileges and Immunities Clause in Article IV, Section 2).  Some of the most important historical litigation is decided under this clause: think the right to counsel, religion (and ending official prayer in public schools), and free speech.  This is because the 14th Amendment protects the "privileges or immunities" found in key Bill of Rights provisions.  The Bill of Rights protects against infringement by the federal government, but not state and local governments. That's where the 14th Amendment comes in.

But the weird thing is that instead of incorporating those rights through the POI Clause (which seems more intuitive - at least to Sam), SCOTUS utilizes the second bold section, known as the Due Process Clause, instead.  (Also not to be confused with the other Due Process Clause in the 5th Amendment).  SCOTUS just did that recently in Timbs v. Indiana with the 8th Amendment's protection against excessive fines.

So why use the Due Process clause instead of the POI Clause? SCOTUS has read the Due Process Clause of the 14th Amendment as having two different parts: procedural (which you may remember from our discussion of the 5th Amendment) and substantive. It's "substantive due process" that ends up getting the credit instead of the POI Clause.

Join us while we attempt to parse out this second part of Section 1.

Some other great resources we used:
-Equal Civil Rights for Citizens by John C. Harrison;
-Not Whether But How: Discerning New Constitutional Freedoms by Kenji Yoshino

And some more interesting case law:
-The Slaughter-House Cases of 1873 (which gutted the POI Clause...ouch), and why that decision may have been misguided;
-McDonald v. Chicago (2010), where SCOTUS applies the 2nd Amendment to the States through the 14th Amendment, but debates whether it should be through the Due Process Clause of the POI Clause;
-Some other big 14th Amendment decisions, including Lochner v. New York (1905), Gitlow v New York (1925)