The Amendment That Remade America

Tunku Varadarajan:

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.