Teaching the Transformative Fourteenth Amendment

Abstract

If the constitutional law casebooks are a reliable guide, most teach the Fourteenth Amendment, like other parts of the Constitution, by presenting separately the various doctrinal topics it has raised.[1] The principal clauses of the Amendment, or really those in the second sentence of Section 1[2]—the Equal Protection, Due Process, and Privileges or Immunities Clauses—are generally extracted from its text and classes are structured around the leading cases decided under each and the resulting doctrine. Cases under the Equal Protection or Due Process Clause may be further separated. Based on the class of claimants, for instance, the cases involving racial and gender equality and affirmative action may be presented as distinct topics. Further subdivision may group the cases involving education, employment, and voting, for instance. Sometimes equal protection and due process both appear, either because claimants raised, or opinions addressed, each constitutional hook or because an equal protection claim against the federal government was necessarily brought under the Fifth Amendment’s Due Process Clause. Incorporation receives some, although much briefer, treatment, casebook page allocation suggests.[3]

Some such conceptual approach is common and sensible. It is important for students to learn something about the history, doctrine, and analytical approaches regarding the various distinct clauses of the Fourteenth Amendment, to read the important cases and understand the arguments the Court found convincing and those it rejected. And it is impossible to begin to understand the Fourteenth Amendment without studying its principal clauses.