MCBA President’s Message: 14th Amendment protects Americans’ freedom

The 14th Amendment was enacted in 1868 in the aftermath of the Civil War. In what had been a fierce and ongoing constitutional battle between state rights and federal power, the 14th Amendment in essence made the federal courts the ultimate guardian of every American citizen’s individual rights of due process and equal protection, irrespective of state legislative actions.

As such, the 14th Amendment has served as a baseline of individual rights that neither the states nor the federal government can intrude on. It has perhaps predictably become one of the most highly litigated constitutional provisions of the 20th and 21st centuries.

Its heart is section 1, which provides: “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 law.”

The 14th Amendment has formed the basis of such landmark decisions as Brown v. Board of Education, Regents of the University of California v. Bakke, Roe v. Wade, and Bush v. Gore.

Case law has expanded the individual liberties and rights specified in the Constitution and Bill of Rights and used the 14th Amendment as a rationale and basis for probating those rights. For example, the right to privacy, although not specified in the Bill of Rights, was found to arise in the “penumbra” of the Bill of Rights in Griswold v. Connecticut.

American democracy tempers majority rule with the constitutional protection of an individual’s rights whether that individual is in the mainstream or majority or not. The 14th Amendment has become the bedrock on which that protection is based. Put another way, the 14th Amendment is the antidote against George Orwell’s 1984. With ever more powerful governmental bodies and with technology creating ever more intrusive means to look at and attempt to regulate individuals’ actions, it is lawyers armed with the shield of the 14th Amendment who are able to even that balance in favor of individuals’ rights.

On this Law Day, let’s celebrate the 14th Amendment and its protection of individuals’ rights that make Americans the freest people on earth.

Mark J. Moretti is president of the Monroe County Bar Association and is the leader of Phillips Lytle LLP’s Construction Litigation Practice Team. He can be reached at [email protected].