key issue in Adarand is the difference in the words and the Supreme
Court's interpretation of the Fifth and Fourteenth Amendments to the
United States Constitution.
Fifth Amendment, ratified in 1791, is one of the ten original
amendments in the Bill of Rights.
The Fourteenth Amendment, ratified in 1868, is
of amendments referred to as Civil War Amendments.
amendments contain phrases that are referred to as either an equal
protection component of a due process clause or an equal protection
these two amendments, each citizen is theoretically guaranteed equal
protection under federal, state, and local laws. In short, all citizens have equal rights.
brief description of these amendments follows.
Fifth Amendment states:
person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising
in the land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor
of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation."
amendment involves actions and programs of the federal government.
For example, Metro
Broadcasting involves a program
authorized by the United States Congress and managed by the Federal
Fifth Amendment has been viewed differently by the Supreme Court
over the years. For
example, in the 1940s, the Court said "Unlike the
Fourteenth Amendment the Fifth contains no equal protection clause
and it provides no guaranty against discriminatory legislation by
Congress. La Belle Iron Works v. United States, 256 U.S. 377,
Bank v. United States, 317 U.S. 329 @ p. 337 (1943)).
However, over the years, the Supreme Court changed its view
and now says that the Fifth Amendment does provide equal
protection rights. For
example, "Equal protection analysis in the Fifth Amendment area
is the same as that under the Fourteenth Amendment. Weinberger v.
Wiesenfeld, 420 U.S. 636, 638 n. 2 (1975)." (Buckley
v. Valeo, 424 U.S. 1 (1976)).
O'Connor provides a thorough progression of judgments under the
Fifth Amendment in Adarand
Constructors v. Pena (93-1841),
515 U.S. 200 (1995) (Adarand III).
the Fourteenth Amendment contains 5 sections, Sections 1 and 5
are key for equal protection issues.
These sections state:
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."
5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article."
1 contains the equal protection clause and Section 5 authorizes
Congress to pass legislation to enforce equal protection in the
states. Section 1 involves actions by the states.
For example, Bakke, Wygant, and Croson are
Section 1 cases. Section 5 involves actions of the Congress to
enforce equal protection. For example, Fullilove is a
Section 5 case.
more thorough explanation of the Fourteenth Amendment is in Justice Miller's opinion in the
Cases, 83 U.S. 36 (1872).
by Robert M. Antonio