The Fifth Amendment limits the federal government; the Fourteenth Amendment limits the states. That is the core of the Fifth Amendment vs. Fourteenth Amendment distinction, and it explains almost everything else about how the two provisions operate. They were ratified 77 years apart, they were written to solve different problems, and their Due Process Clauses use nearly identical words to do parallel work against different levels of government. Over the last century, the Supreme Court has used the Fourteenth to apply most Fifth Amendment protections to state and local governments, so the practical gap between them is narrower than the text suggests, but the structural difference still shapes how constitutional cases are argued and won.
What Each Amendment Actually Says
The Fifth Amendment, ratified in 1791 as part of the Bill of Rights, packs five separate protections into one paragraph: a grand jury requirement for serious federal crimes, protection against being tried twice for the same offense, the right against self-incrimination, a guarantee of due process, and the requirement that the government pay just compensation when it takes private property for public use.1Cornell Law School. Fifth Amendment Each of these functions independently. A takings case can proceed without any self-incrimination issue, and vice versa.
The Fourteenth Amendment, ratified in 1868 after the Civil War, was written to prevent state governments from denying basic rights to formerly enslaved people.2National Archives. 14th Amendment to the U.S. Constitution – Civil Rights Its first section contains four clauses: the Citizenship Clause, which makes anyone born or naturalized in the United States a citizen; the Privileges or Immunities Clause; the Due Process Clause, which mirrors the Fifth Amendment’s language but points at the states; and the Equal Protection Clause, which requires states to apply the law equally to everyone within their borders.3Cornell Law School. 14th Amendment Section 5 gives Congress the power to enforce these guarantees by legislation, which became the constitutional footing for much of modern civil rights law.
Two things stand out from a straight comparison. The Fourteenth Amendment contains an Equal Protection Clause; the Fifth does not. And the Fifth Amendment contains specific criminal-procedure rules — grand jury, double jeopardy, self-incrimination — that the Fourteenth’s text does not repeat.
Who Each Amendment Restrains
The Fifth Amendment was written to bind the federal government only. Its protections originally meant nothing if a state or local government violated them. The Supreme Court made that explicit in Barron v. Baltimore (1833), where a wharf owner argued that the city of Baltimore had destroyed his property without the just compensation the Fifth Amendment requires. The Court ruled against him, holding that the Fifth Amendment “is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.”4Justia U.S. Supreme Court Center. Barron v. Mayor and City Council of Baltimore, 32 U.S. 243
Under that framework, state governments could — and often did — violate rights that the federal government was constitutionally forbidden from touching. If you had a grievance against a state, your only recourse was your own state constitution. The Fourteenth Amendment was the fix. Its opening words, “No State shall,” imposed federal constitutional limits on state power for the first time.2National Archives. 14th Amendment to the U.S. Constitution – Civil Rights
How the Fourteenth Extended the Fifth to the States
The Fourteenth Amendment did not simply restate the Bill of Rights and re-aim it. Instead, the Supreme Court has applied individual rights against the states one at a time through a doctrine called selective incorporation, using the Fourteenth Amendment’s Due Process Clause as the mechanism. The question for each right is whether it is fundamental enough to be required of state governments. Over the last century, the answer has been yes for nearly every Fifth Amendment protection.
- Self-incrimination was incorporated in Malloy v. Hogan (1964).
- Double jeopardy was incorporated in Benton v. Maryland (1969).
- The Takings Clause was one of the earliest rights to be incorporated, through a case in 1897.
- Due process required no separate incorporation because the Fourteenth Amendment already contains its own Due Process Clause with essentially identical language.
The grand jury requirement is the major holdout. The Supreme Court ruled in Hurtado v. California (1884) that states do not have to use grand juries to bring criminal charges, and that holding has never been overturned.5Library of Congress. Grand Jury Clause Doctrine and Practice States can bring charges through a preliminary hearing before a judge or through a prosecutor’s information filing instead. Many states keep some form of grand jury system voluntarily, but they are not constitutionally required to.
Equal Protection Runs the Other Direction Too
Because the Fifth Amendment contains no Equal Protection Clause, a literal reading would let the federal government discriminate in ways the states cannot. The Supreme Court closed that gap in Bolling v. Sharpe (1954), decided the same day as Brown v. Board of Education. Brown struck down state-mandated school segregation under the Fourteenth Amendment. Bolling addressed segregation in Washington, D.C. public schools, which are under federal control. The Court held that racial segregation by the federal government violated the Fifth Amendment’s Due Process Clause, reasoning that “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”6Justia U.S. Supreme Court Center. Bolling v. Sharpe, 347 U.S. 497
The concept of reading equal protection principles into the Fifth Amendment’s due process guarantee is called reverse incorporation. The practical effect: both federal and state governments are bound by equal protection principles, even though the textual basis sits in different amendments.
Due Process Means the Same Thing Under Both
Both amendments prohibit the government from depriving anyone of “life, liberty, or property, without due process of law.” Courts have split that phrase into two doctrines that operate under either amendment.
Procedural due process requires the government to follow fair procedures before taking your life, freedom, or property. At minimum, you are entitled to notice of what the government plans to do and a meaningful opportunity to be heard before an impartial decision-maker. Depending on what is at stake, you may also have the right to confront and cross-examine witnesses, review the evidence against you, and receive a decision based solely on the record.
Substantive due process holds that certain rights are so fundamental that no amount of procedural fairness can justify infringing them. Courts have recognized rights like marrying whom you choose, raising your children, and working in a lawful occupation under this doctrine. The government can still regulate in these areas, but the justification needed grows stronger as the right at stake becomes more fundamental.
Because the analysis is the same under either amendment, whether a federal agency revokes your professional license or a state court terminates your parental rights, the due process framework a court applies looks essentially identical. The Fifth carries it against federal actors; the Fourteenth carries it against state actors.
Why the Distinction Still Matters When You Sue
The Fifth-versus-Fourteenth line has real consequences when you try to hold a government accountable in court, because which amendment applies decides what legal tools you have.
If a state or local official violates your constitutional rights, federal law provides a clear path. Under 42 U.S.C. § 1983, you can sue anyone who, acting under government authority, deprives you of rights secured by the Constitution.7Office of the Law Revision Counsel. 42 U.S. Code 1983 – Civil Action for Deprivation of Rights Congress passed that statute under the Fourteenth Amendment’s enforcement power, and it is the main vehicle for modern civil rights litigation against state actors.
Suing federal officials is much harder. There is no federal equivalent of Section 1983. The closest option is a Bivens action, named after a 1971 Supreme Court case that allowed a plaintiff to sue federal narcotics agents for violating his Fourth Amendment rights. The Supreme Court has spent the last several decades narrowing Bivens. After Egbert v. Boule in 2022, courts must refuse to extend Bivens to any new context if there is any reason to think Congress might be better positioned to create a remedy, a standard that almost always produces a no.
The asymmetry is real. A robust statutory route exists for suing state officials who violate constitutional rights; the equivalent path against federal officials has been all but closed. Which amendment your claim rests on is not a technicality — it changes what you can ask a court to do about the violation.