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The Adarand Chronicle:  From Bakke to Adarand VII

Amendments Five and Fourteen



A 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 The Fifth Amendment, ratified in 1791, is one of the ten original amendments in the Bill of Rights.  The Fourteenth Amendment, ratified in 1868, is one of amendments referred to as Civil War Amendments.

These amendments contain phrases that are referred to as either an equal protection component of a due process clause or an equal protection clause.  Under these two amendments, each citizen is theoretically guaranteed equal protection under federal, state, and local laws.  In short, all citizens have equal rights.  A brief description of these amendments follows.

The Fifth Amendment

The Fifth Amendment states:

"No 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 be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." 

This 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 Communications Commission.

The 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, 392."  (Detroit 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)).

Justice 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

Although the Fourteenth Amendment contains 5 sections, Sections 1 and 5 are key for equal protection issues.  These sections state:

"Section 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."

"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Section 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. 

A more thorough explanation of the Fourteenth Amendment is in Justice Miller's opinion in the Slaughter-House Cases, 83 U.S. 36 (1872).   


Copyright 2001 by Robert M. Antonio



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