● Meaning of the Clauses in the 14th Amendment

○ Equal Protection-
■ one of the two best known, provides denial of equal protection of law
■ “human dignity”- all humans are entitled to respect, no person because of
identity is lesser than another
○ Due Process
■ precedes equal protection, ensures denial of life, liberty, property w/out
due process of law
■ two sides:
● due - “fair” process of the law, everyone is entitled to a fair
process with notice, and impartial court
● substantive component - if a state passes a law, for example, with
Anti-German sentiment, state law says that it’s impermissible to
learn the German language. If you can’t go to the President or
Congress, you can go to the courts.
○ In this case, (Meyer v. Nebraska) the parents went to court
and there was nothing in the Constitution about choice of
educating their children
○ The Due Process Clause had an additional meaning,
certain things the govt had to respect, choices that people
can make themselves
● Why do we have the 14th Amendment guaranteeing due process and equal protection?
○ Did the original constitution contain these?
■ 5th amendment due process clause
■ No counterpart to equal protection clause in original constitution
■ the Declaration of Independence had these ideas and it was a preceding
document, the starting premise at birth of nation but was not in the
Constitution.
■ The original bill of rights operated against federal government, not the
states, expresses the notion of T. Jefferson in Declaration of equality,
tells states that they must observe due process of law, accord all people
equal protection
○ Why isn’t there an equality guarantee until later?
■ some states had equality provisions
■ argument over legality of slavery, framers didn’t want to address issue
■ original constitution has imperfections, in Article I slave trade was allowed
to continue, the Fugitive Slave Clause in Article 4 (any person held in
service must be returned to other states)
● To whom does the 14th Amendment now apply?
○ originally sought to protect the rights of newly freed slaves, to say that people
have inalienable rights regardless of race, color, etc. Race was the driving force
of the 13th, 14th, 15th Amendment.
○ Supreme Court firstly said that the clause was so obviously referring to slavery
that it doesn’t apply to other situations
 ■ over time, the Equal Protection Clause has expanded, from slaves to
encompass more people.
● “We the People, in order to form a more perfect union” - the
people were originally white property owning men
● the genius of the constitution is that over time, there is a more
perfect union by encompassing more people - women in 1920
■ Now, the equal protection clause protects all persons, not “all citizens”, all
persons.
● Washington DC is not a state, but RBG has the same equal
protection rights even though she lives in DC
● applies to all of US, including all territories and the District of
Columbia
● 14th Amendment and Women
○ How did it come to grant equal protection to women even though the clause uses
the word man three times?
■ Key provision uses the word “persons” rather than male
■ In some cases men claimed that they were denied rights given to women
● RBG was involved in these cases:
○ Weinburger v. Wiesenfeld: A man was involved of principle
operations in his home, wife was pregnant, she was taken
from school to the hospital, the doctor told the father that
he had a healthy baby boy, but his wife died. Steven
Wiesenfeld vowed to be the genuine caretaker, applied for
social security benefits available to widows
○ Social security officers said it was only to widows, not
widowers
○ A unanimous judgement, for multiple reasons, most judges
said the discrimination began with his wife, because she
paid social security taxes at the same rate as a man, but
hers did not net for her family the same benefit that a man
paying the same tax got for his family. He had full social
security coverage for his wife, but it didn’t go the other
way. Some said it was about the man, or the woman, and
the baby (allowed to be provided for if female, but not male
caregiver)
● Gender laws were unfair to everyone, not just male and female, it
was a matter of equal rights
○ When the 14th amendment was created many laws treated genders differently
■ Women did not serve jury duty, women were subordinate, could not sue
in court or hold property
● Founders probably had no intention to change that
■ One judge said “women’s destiny is to be wife and mother, that is the law
of the creator”
■ Originally legislatures could make a distinction between men and women
 ○ RBG concerned herself with cases about both men and women, the clause is
about people and having opportunities with no artificial barriers because of
gender
■ the expression women’s rights is problematic because it’s all people
● How has the court’s approach to gender discrimination changed over time?
○ Case: decided by the Supreme Court in 1961, when Earl Warren was the chief
justice. He was known as a liberal chief justice
■ Involved Wendelyn Hoyt- a battered woman, a flandering husband,
humiliated her. They fought, she hit her husband with a baseball bat and
he fell over and died instantly
● Wendelyn was put on trial for murder, her home county only men
were called for jury duty. A woman can sign up for jury duty, but if
she doesn’t ask, she won’t be on the jury roll. At this time, there
were no women on the jury roll
○ Convicted of murder, Hoyt said she was denied of Equal
Protection
○ Supreme Court said that they didn’t understand her
problem, the women have it the best because they don’t
have to serve jury duty
● She believed that she could have been convicted of a lesser
crime, possibily, if they had more women
● Later, the Supreme Court did an about-face, when Chief Justice
Burger, a conservative justice came on. During the 1970s dozens
of laws were overturned because of denying rights, the laws had
to be changed
○ benefits to men’s families and women’s families
● Why was there an enormous change?
○ More women were coming into the workforce, the judges don’t decide cases
based on news/weather of the day but are affected by the climate of the era, this
was changing at this time (more two-earner families, more women in workforce)
■ court was catching up to the changing world in the 70’s
● Changes in the interpretation of the 14th Amendment, and what accounts for these
differences
○ Not philosophy or court changes, but because the people have changed in their
attitudes and have come to the court and said that the Equal Protection Clause
has a grand idea of equal stature of all humans
■ People think the government has interpreted incorrectly, due to change in
larger society
■ Courts are reactive institutions, don’t make own agenda like the
President, rather react to controversies that people bring to them
● Like firefighters, don’t make fires but put them out
● How has the Court’s approach to racial discrimination changed across time?
 ○ Dred Scott v. Sandford- no person born of a slave can ever be a citizen of the
United States and remains property of master- that decision helped precipitate
the Civil War
○ The subsequent amendments 13-15 made slaves citizens
○ Plessy v. Ferguson - the court ruled that separate but equal was allowed,
“separate but equal doctrine”, case originally about accommodations
■ later separate but equal was misguided, equal instead means together,
the people forming a union with no separation of people by race, national
origin, etc.
● Should there be an equal rights amendment to the Constitution?
○ The equal rights amendment was proposed to give equal rights to males and
females but never passed- said that rights should not be denied on account of
sex
■ supporters thought that the 19th amendment was too limited, all it did was
give the right to vote, over the years women wanted more opportunity.
● they were inspired by constitutions written since WWII that
understood the equal stature of men and women