Fourteenth Amendment

• All persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside (overrides Dred Scott).
  
• No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

  • Amendment XIV, § 1

Fourteenth Amendment

• . . . 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.

  • Amendment XIV, § 1

Privileges or Immunities Clause

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Amendment XIV, § 1

Privileges and Immunities Clause of Article IV

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

(Art. IV, § 2, cl. 1)

Implied Fundamental Rights

• Due Process Clause
  • Incorporation of (most of) Bill of Rights
  • Substantive Due Process
• Equal Protection Clause
  • Fundamental Interests

Incorporation

Rights that are:

• essential to the concept of ordered liberty (later, essential to the American scheme of justice, p.708)
  
• so rooted in the tradition and conscience of our people as to be ranked fundamental

Lochner

(1) Only certain ends of government policy are legitimate. There must be some public interest at stake.

(2) There must be a fairly direct relationship between the goal of the statute and the means used to attain the goal.

Old Dormant Commerce Clause