By, Wall Street Journal
The First? The Second? No, the 14th—the basis for every claim against a state government for violating individual rights. Randy Barnett and Evan Bernick say it’s time to assert its original meaning.
What’s the most important amendment to the U.S. Constitution? The First, which guarantees the freedoms of religion, speech and assembly? If you favor gun rights, perhaps the Second? Criminal-defense lawyers might be inclined to invoke the Fifth. Randy Barnett and Evan Bernick make a case for an amendment that isn’t even in the Bill of Rights—the 14th, ratified in 1868.
That amendment, among its other provisions, bars states from abridging “the privileges or immunities” of citizens or depriving any person of life, liberty or property “without due process of law.” It’s best known for guaranteeing to all persons “the equal protection of the laws.”
The 14th Amendment “not only changed the structure of our federalism, but it extended the protection of fundamental rights,” Mr. Barnett says. Before its ratification, the Supreme Court had held in Barron v. Baltimore (1833) that the Bill of Rights didn’t limit states’ authority. That started to change in 1897, as the court “incorporated” various rights, holding that the 14th Amendment’s Due Process Clause obligates the states to respect them.
By the end of the 20th century, all of the First and Fourth Amendments had been incorporated, as had most of the provisions of the Fifth, Sixth and Eighth Amendments, along with unenumerated rights such as privacy and travel. In 2010 the court added the Second Amendment to the list, and in 2019 the Eighth Amendment’s prohibition against excessive fines. Thus every challenge to a state or local law or action that alleges an improper establishment of religion, the imposition of cruel and unusual punishments, or anything in between is also a 14th Amendment challenge.