The 5th Amendment and the 14th Amendment both have due process clauses. The texts are almost identical:

The Fifth Amendment:

[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .

The Fourteenth Amendment:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .

From all I've read - including a comment by cpast - the two clauses are interpreted identically. So why was the clause added to the 14th Amendment?

The one difference seems to be the use of "State" in the 14th Amendment - thus applying it not just on a federal level - but I would think that the Constitution would be automatically applicable in all state level cases.

1 Answer 1


Your assumption is incorrect -- the Bill of Rights proper does not apply to the states, and pre-14th Amendment only bound the federal government. See Barron v. Baltimore, 32 US 243. States could do whatever they wanted, subject to federal legislation on the matters given to the federal government and subject to their own constitutions.

After the Civil War, the federal government was much less OK with so-called "black codes," restricting the rights of freedmen based on explicitly racial distinctions, with not even a fig leaf of justification that it applied to all citizens. The federal government could prevent federal discrimination, but no tools existed to prevent state discrimination. Hence, the 14th Amendment, which bound the states to adopt certain standards in their lawmaking and let Congress take action against those that didn't.

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    Why don't federal amendments constrain state laws? And how does it help if an amendment calls out state laws specifically — does that power come about just by fiat? Could the Supreme court not have simply admitted that the Federal Government had the power to uphold citizens' rights all along, i.e. reverse Barron? Wikipedia says, "Therefore, as to most, but not all, provisions of the Bill of Rights, Barron and its progeny have been circumvented, if not actually overruled." Jul 7, 2015 at 4:38
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    @Potatoswatter There is nothing in any part of the pre-14th Amendment constitution to give any support to the idea that the Bill of Rights constrained the states. No one thought it constrained the states when it was passed and ratified. The Constitution constrains the states, but only when it says it does -- the Bill of Rights never said or implied that it constrained the states, so it no more constrained them than Article I required states to set up a bicameral legislature. There is no basis to reverse Barron; "there has been an amendment, so X no longer applies" is not "X is overruled."
    – cpast
    Jul 7, 2015 at 13:12
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    @Andy Not only were they free to do so, but they actually did so -- several New England states maintained state religions after the ratification of the Constitution, in one case into the 1830s. New Hampshire required state officials to be Protestant until after the Civil War. Many states had bills of rights already (it wasn't a new concept), but the general idea was that states should have the right to do their own thing as sovereign entities. There wasn't no support for a Bill of Rights applying to the states (Madison's initial proposal included it), but it was intentionally not passed.
    – cpast
    Sep 11, 2015 at 3:24
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    @Andy (A bit late, I realize, but for the benefit of future readers): This is an unfortunately common misconception. The Puritans in particular set up a (by modern standards) hideously repressive Christian theocracy in Massachusetts Bay, which persisted for several decades until England finally revoked their charter in 1684 and merged them into what eventually became modern Massachusetts.
    – Kevin
    May 4, 2018 at 4:29
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    Indeed, one of the reasons for the Establishment Clause in the First Admendment, when it was first passed, was to prevent the Federal government interfering with State establishments of religion, which several states had at that time, and did not want to give up. Feb 28, 2019 at 23:06

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