What You Need to Know About… The 14th Amendment as a Check on the States


“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.”



At the time of its ratification, the first section of the Fourteenth Amendment was the first to contain an explicit command to the states to not engage in prohibited conduct affecting individual rights and freedoms. Under that language, states are barred from doing three things. First, they can’t “make or enforce any law” that will burden “the privileges or immunities of citizens of the United States.” Second, they’re not allowed to “deprive any person of life, liberty, or property without due process of law.” And last, a state may not “deny to any person . . . the equal protection of the laws.”


From these provisions, federal courts have understood the Fourteenth Amendment to serve as a check on state action — forbidding both federal and state governments from taking actions that deny equality or take away a person’s freedom and other fundamental rights without a fair opportunity to be heard in a public forum. For newly-freed African Americans, this language reassured them that the Constitution now protected liberties that were once blatantly denied them by state and local governments.


Reflecting on this limitation on the states, Justice Thurgood Marshall surmised in a 1968 speech that “the states were not to be left to grant or deny” the guarantees of the Fourteenth Amendment “as they pleased.” But he recognized that it would be up to the judiciary and committed lawyers to bring about cases that would test these principles against those who violate them, saying, “these rights cannot be enforced unless those who possess them know they exist and are given the legal means to vindicate them.”