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The Equal Protection Clause in the Fifth and Fourteenth Amendments

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  • 0:03 5th Amendment & Equal…
  • 1:51 14th Amendment & Equal…
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Instructor: Kat Kadian-Baumeyer

Kat has a Master of Science in Organizational Leadership and Management and teaches Business courses.

Both the 5th Amendment and the 14th Amendment of the US Constitution provide all citizens with equal protection of their right to life, liberty and property. The main difference being the 5th Amendment provides it under the Due Process clause.

5th Amendment and Equal Protection

The 5th Amendment of the United States Constitution 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'.

What this means, in short, is that no person can be detained in jail for a felony crime (unless directed by a grand jury), tried for the same crime twice or forced to testify against oneself.

Equal protection comes into play where the amendment states that no person can be deprived of life, liberty, or property without due process. Due process is an assurance that all legal proceedings will be fair and reasonable.

We know that a person cannot be taken away to jail without warning. That would interfere with one's right to liberty. So, to be sure that no procedural error occurs, Miranda rights are generally read.

These are rights read to a person when they are placed under arrest that inform the arrestee that he has a right to remain silent, anything said may be used against him and provides for a right to an attorney. Miranda rights mostly protect against self-incrimination, but it is a procedure that protects a person's right to liberty or freedom. It serves as an equal protection clause.

14th Amendment and Equal Protection

The 14th Amendment also affords equal protection. Under the 14th Amendment, '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'.

This amendment is worded similarly to the 5th Amendment and offers generally the same protection. The real difference is the procedure for due process.

It's pretty simple. Due process in the 5th Amendment happens by a court. In the 14th Amendment, it is a given right to limit the power of the government to interfere with people's affairs, like freedom of speech or property ownership, unless their actions are illegal.

So, to contrast the two, the 5th Amendment protects the rights of someone who is suspected of a crime and the 14th Amendment protects a citizen from unreasonable control by the government.

Discriminatory laws protect all citizens against discrimination and grants that all citizens will be treated equal.

Because there are laws that forbid discrimination, the government will be subject to strict scrutiny if they act in discriminatory ways against a suspect classification or a group of people that are classified by certain characteristics, like race or religion. This means that any government entity that falls under strict scrutiny will answer to the charges before a review board to determine whether constitutional rights have been violated.

Sometimes the discriminatory actions are taken against those that do not fall under suspect classification. Discrimination against these quasi-suspects is subject to the same review. The rational basis test is a review that determines whether the government had a legitimate right to make a law that may seem to violate a constitutional right.

Perhaps an example will help. We learned that the 14th Amendment provides citizens with the right to liberty. So, we can define liberty as the freedom to do the things we like to do.

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