Fourteenth Amendment

The Fourteenth Amendment to the U.S. Constitution provides in pertinent part that:

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.

Once the last resort of constitutional argument, this phrase assumed modem importance in the 1954 decision in Brown v. Board of Education of Topeka that segregated schools were unconstitutional. Since that time, the jurisprudence of equal protection has expanded considerably. Modern interpretations of the equal protection clause subject governmental categorizations of people to various levels of scrutiny, with classifications along race and alienage receiving the strictest scrutiny, and then gender.

The prohibition against invidious discrimination contained in the equal protection clause is based, in large part, on the moral and political conviction that people are essentially equal, and that government action cannot be based on designations of a group that are arbitrary from a moral and political point of view. Although science and technology were probably not directly responsible for the emergence of equality as an important constitutional value, they have contributed greatly in its implementation.

The Brown decision relied heavily on the findings of social science to support its reasoning, and modern technology has helped to reduce many of the barriers to employment and military service that were once thought to be justifications for discrimination based on gender. In the future, science and technology will contribute to ongoing debate over the meaning of, and basis for, equal protection of the law.

Fourteenth Amendment issues may develop from an application of computer-based social science and statistical models to predicting criminal behavior and to aid in such tasks as approving credit, determining insurability, or hiring and promoting employees. Essentially, individuals may be denied rights, privileges, and benefits based, not on past performance, but on a prediction of future tendencies. For example, society cannot imprison a person that a computer model predicts may someday rob a bank. But should that knowledge be “probable cause” to monitor such a person closely or deny him or her employment?