The 'Fourteenth Amendment to the
United States Constitution' ('Amendment XIV') is one of the post-
Civil War amendments (known as the
Reconstruction Amendments), intended to secure rights for former
slaves. It includes the
Due Process and
Equal Protection Clauses among others. It was proposed on
June 13,
1866, and ratified on
July 9,
1868.
[1] It is perhaps one of the most important structural changes to the Constitution.
The amendment provides a broad definition of national
citizenship, overturning the ''
Dred Scott'' case, which excluded
African Americans. It requires the states to provide equal protection under the law to all
persons (not only to citizens) within their
jurisdictions, and was used in the mid-
20th century to dismantle
legal segregation, as in ''
Brown v. Board of Education''. Its Due Process Clause has driven many important and controversial cases around
privacy rights,
abortion (see ''
Roe v. Wade''), and other issues.
The other two post-Civil War amendments are the
Thirteenth Amendment (banning slavery) and the
Fifteenth Amendment (banning race-based voting qualifications). According to
Supreme Court Justice
Noah Swayne, "Fairly construed, these amendments may be said to rise to the dignity of a new
Magna Carta."
[2]
Text
Citizenship and civil rights
Main articles: Citizenship Clause,
Privileges or Immunities Clause,
Due Process Clause,
Equal Protection Clause
The first section formally defines citizenship and requires the states to provide civil rights.
This represented
Congress's reversal of that portion of the ''
Dred Scott v. Sandford'' decision that declared that
African Americans were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. The
Civil Rights Act of 1866 had already granted U.S. citizenship to all people born in the United States; the framers of the Fourteenth Amendment enshrined this principle in the Constitution in order to stop the Supreme Court from ruling it unconstitutional for want of congressional authority to pass such a law, or from a future Congress altering it by a bare majority vote.
Citizenship
The provisions in Section 1 have been interpreted to the effect that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee—legally termed ''
jus soli'', or "right of the territory"— does not exist in most of Europe or Asia, although it is part of English
common law and is common in the Americas.
The phrase ''and subject to the jurisdiction thereof'' indicates that there are some exceptions to the universal rule that birth on U.S. soil automatically grants citizenship. In the case of ''
Wong Kim Ark'', the Supreme Court ruled that a person born within the territorial boundaries of the United States is eligible for birthright citizenship regardless of the nationality of his or her parents. The only exceptions to this rule identified in ''Wong Kim Ark'' concern diplomats, enemy forces in hostile occupation of the United States, and members of
Native American tribes.
[3]
The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of ''Wong Kim Ark''.
[4] Neither in that decision nor in any subsequent case has the Supreme Court explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the Amendment,
[5] although it has generally been assumed that they are.
[6] In some cases the Court has implicitly assumed, or suggested in ''dicta'', that such children are entitled to birthright citizenship: these include ''INS v. Rios-Pineda''
[7] and ''
Plyler v. Doe''.
[8] Nevertheless, some claim that Congress possesses the power to exclude such children from US citizenship by legislation:
such legislation is often proposed by individual members of Congress but has never been passed into law.
The Fourteenth Amendment does not explicitly provide any procedure for loss of United States citizenship. Loss of U.S. citizenship is possible only under the following circumstances:
★ Fraud in the
naturalization process. Technically this is not loss of citizenship, but rather a voiding of the purported naturalization and a declaration that the immigrant ''never was'' a U.S. citizen.
★ Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the
State Department or through other actions which demonstrate an intention to give up U.S. citizenship.
For a long time, voluntary acquisition or exercise of a foreign citizenship was considered sufficient cause for revocation of U.S. citizenship. This concept was enshrined in a series of treaties between the United States and other countries (the
Bancroft Treaties). However, the Supreme Court overturned this concept in a 1967 case, ''
Afroyim v. Rusk''—as well as a 1980 case, ''
Vance v. Terrazas''—holding that the citizenship clause of the 14th Amendment barred Congress from exercising this sort of authority to revoke citizenship.
Civil and other individual rights
Congress also passed the Fourteenth Amendment in response to the
Black Codes that
southern states had passed in the wake of the
Thirteenth Amendment, which ended
slavery in the United States. Those laws attempted to return freed slaves to something like their former condition by, among other things, restricting their movement and by preventing them from
suing or
testifying in court.
Prior to the adoption of this Amendment, the Bill of Rights was generally, though not universally, thought to act only as a restraint on federal governments, not those of the state, and a state's relations with its citizens and those of other states was legally restrained only by that state's constitution and laws and those provisions of the Constitution that limited the powers of the states. While many states modeled their constitutions and laws after the federal government's, those
state constitutions did not necessarily include provisions comparable to the Bill of Rights. There is good reason to believe that the framers and early supporters of the Fourteenth Amendment believed that it would ensure that the states would be required to recognize the individual rights the federal government was already required to respect--in the Bill of Rights and in other constitutional provisions; all of these rights were likely understood to fall within the "privileges or immunities" safeguarded by the Amendment. However, the Supreme Court sought to limit the reach of the Amendment by holding in the ''
Slaughterhouse Cases'' (1871) that the "privileges or immunities" clause was limited to "privileges or immunities" granted to citizens by the federal government in virtue of national citizenship. The Court further held in the ''
Civil Rights Cases'' that the Amendment was limited to "state action" and thus did not authorize Congress to outlaw
racial discrimination on the part of private individuals or organizations. Neither of these decisions has been overturned and in fact have been specifically reaffirmed several times.
In the decades following the enactment of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from
juries (''
Strauder v. West Virginia'') or discriminating against
Chinese-Americans in the regulation of laundry businesses (''
Yick Wo v. Hopkins''), under the aegis of the
Equal Protection Clause.
In ''
Plessy v. Ferguson'', the Supreme Court held that the states could impose
segregation so long as they provided equivalent facilities—the genesis of the "separate but equal" doctrine. The popular understanding of what was encompassed under "civil rights" was much more restricted during the time of the Fourteenth Amendment's ratification than the present understanding, involving such things as equal treatment in
criminal and
civil court, in
sentencing, and in availability of
civil services if they apply. On this scheme, political rights were first guaranteed not with the Fourteenth Amendment but with the Fifteenth Amendment and its right to vote. Social rights first explicitly appeared with ''
Loving v. Virginia'' (1967), which declared
anti-miscegenation laws to be unconstitutional.
Many maintain that the Fourteenth Amendment was designed to encompass a broad anti-discrimination principle, or at least to declare personal rights broader than the restricted early conception of "civil rights". On this view, ''Plessy v. Ferguson'' sapped the equal protection clause of its original meaning in restricting its application to this degree. The Court went even further in restricting it in ''
Berea College v. Kentucky'', holding that the states could force private actors to discriminate by prohibiting an integrated college from admitting both black and white students. By the early
twentieth century, the Equal Protection Clause had been eclipsed to the point that Justice
Oliver Wendell Holmes, Jr. dismissed it as "the usual last resort of constitutional arguments."
The Court held to the "separate but equal" doctrine for more than fifty years, despite numerous cases in which the Court itself had found that the segregated facilities provided by the states were almost never equal, until the case ''
Brown v. Board of Education of Topeka'' reached the Court. ''Brown'' met with a campaign of resistance from white Southerners, and for decades the federal courts attempted to enforce Brown's mandate against continual attempts at circumvention. This resulted in the controversial
forced busing decrees handed down by federal courts in many parts of the nation, including major Northern cities such as Detroit (''
Milliken v. Bradley'') and Boston.
In the half century since ''Brown'', the Court has extended the reach of the Equal Protection Clause to other historically disadvantaged groups, such as women,
aliens, and illegitimate children, although applying a somewhat less stringent test than it has applied to governmental discrimination on the basis of race.
Beginning in the 1880s, the Court interpreted the Fourteenth Amendment's Due Process Clause as providing substantive protection to private contracts and thus prohibiting a range of social and economic regulation. The Court held that the Fourteenth Amendment protected "freedom of contract", or the right of employees and employers to bargain for wages without great interference from the state. Thus, the Court struck down a law decreeing maximum hours for workers in a bakery in ''
Lochner v. New York'' (1905), and struck down a minimum wage law in 1923's ''
Adkins v. Children's Hospital''. The Court did uphold some economic regulation, however, including state prohibition laws (''
Mugler v. Kansas''), laws declaring maximum hours for mine workers (''Holden v. Hardy''), laws declaring maximum hours for female workers (''
Muller v. Oregon''), as well as federal laws regulating narcotics (''United States v. Doremus'') and President Wilson's intervention in a railroad strike (''Wilson v. New'').
The Court overruled ''Lochner'', ''Adkins'', and other precedents protecting "liberty of contract" in 1937's ''
West Coast Hotel v. Parrish'', decided in the midst of the
New Deal and in the shadow of President
Franklin D. Roosevelt's threats to "
pack the court" following a series of decisions holding other New Deal legislation unconstitutional. Whether the threat actually caused
Justice Roberts to change his vote—some wags at the time joked "a switch in time saved nine"—is still debated; Roosevelt's proposal to expand the Court was defeated.
Yet while the Supreme Court has emphatically rejected the
substantive due process precedents that allowed it to overturn states' economic regulations, in the past forty years it has recognized a number of "fundamental rights" of individuals, such as
privacy and some parental rights, which the states can regulate only under narrowly defined circumstances. In effect, it has found an alternative mechanism for fulfilling many of the intentions the Amendment's framers and ratifiers expressed in the Privileges or Immunities Clause, though without acknowledging the inconsistency of earlier decisions with that clause or opting for the full
Incorporation of all relevant federal rights against the states in the manner the Amendment seems designed to require.
While it has not been fully implemented, the doctrine of
Incorporation has thus been used to ensure, through the unwieldy and unexpected means of the
Due Process Clause instead of the
Privileges or Immunities Clause, the application of nearly all of the rights explicitly enumerated in the
Bill of Rights to the states. As a result, the Fourteenth Amendment not only empowered the
federal courts to intervene in this area to enforce the guarantee of due process and the equal protection of the laws, but to import the substantive rights of free speech, freedom of religion, protection from unreasonable searches and
cruel and unusual punishment and other limitations on governmental power. At the present, the Supreme Court has held that the Due Process Clause incorporates all of the substantive protections of the
First,
Fourth,
Sixth, and
Eighth Amendments and all of the
Fifth Amendment other than the requirement that any criminal prosecution must follow a
grand jury indictment, but none of the provisions of the
Seventh Amendment relating to civil trials. Thus, the Court has also greatly expanded the reach of procedural due process, requiring some sort of hearing before the government may terminate civil service employees, expel a student from public school or cut off a welfare recipient's benefits.
Though the framers of the Fourteenth Amendment did not believe it would expand voting rights (leading to the passage of the
Fifteenth Amendment, which prohibited racial discrimination in voting), the Supreme Court, since 1962's ''
Baker v. Carr'' and 1964's ''
Reynolds v. Sims'', has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats on a "one-person, one-vote" basis. The Court has also struck down districting plans in which race was a major consideration. In
Shaw v. Reno (1993), the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic underrepresentation in the state's Congressional delegations. In
League of United Latin American Citizens v. Perry (2006), the Court ruled that
Tom DeLay's Texas redistricting plan intentionally diluted the votes of
Latinos and thus violated the Equal Protection Clause. In both of those cases, however, the Court refused to interfere with partisan
gerrymandering, as opposed to racial or ethnic gerrymandering, seeing it as within the valid scope of state authority.
Apportionment of representatives
The second section establishes rules for the
apportioning of
representatives in Congress to states, essentially counting all residents for apportionment and reducing apportionment if a state wrongfully denies a person's right to vote.
This section overrode the provisions of the
Constitution that counted slaves as three-fifths of a person for purposes of allotting seats in the House of Representatives and the Electoral College. However, the provision calling for proportional decreases in
House representation for states that denied men over 21 the right to vote was never enforced, despite the fact that Southern states prevented many blacks from voting before the passage of the
Voting Rights Act in 1965.
Participants in rebellion
The third section prevents the election of any person to the Congress or
Electoral College who had held any of certain offices and then engaged in
insurrection,
rebellion, or
treason. A two-thirds vote by Congress can override this limitation, however. This disqualification could not have been enacted as a statute, because it would have been an
ex post facto punishment. In 1978, two-thirds votes of both Houses of Congress were obtained, posthumously removing the service ban from
Robert E. Lee and
Jefferson Davis.
Validity of public debt
The fourth section confirmed that the United States would not pay "damages" for the loss of slaves, nor debts that had been incurred by the
Confederacy — for example, several
English and
French banks had loaned money to the South during the war. In spite of the Amendment, Confederate bonds were traded on money markets for many years, albeit at a great discount from par, on the hope that the U.S. would eventually stand behind them.
Power of enforcement
Main articles: Congressional power of enforcement
Although in ''
Katzenbach v. Morgan'' (
1966) the
Warren Court construed this section broadly, the
Rehnquist Court tended to construe it narrowly, as in ''
City of Boerne v. Flores'' (
1997) or ''
Board of Trustees of the University of Alabama v. Garrett'' (
2001). But see
Tennessee v. Lane and
Nevada Department of Human Resources v. Hibbs.
Proposal and ratification
The Congress proposed the Fourteenth Amendment on
June 13,
1866.
[9] There being thirty-seven states in the Union at that time, the ratification (per
Article Five of the Constitution) of twenty-eight would bring this Amendment into operation. By
July 9,
1868, twenty-eight states had ratified the Amendment:
# Connecticut (
June 25,
1866)
# New Hampshire (
July 6,
1866)
# Tennessee (
July 19,
1866)
# New Jersey (
September 11,
1866)
# Oregon (
September 19,
1866)
# Vermont (
October 30,
1866)
# Ohio (
January 4,
1867)
# New York (
January 10,
1867)
# Kansas (
January 11,
1867)
# Illinois (
January 15,
1867)
# West Virginia (
January 16,
1867)
# Michigan (
January 16,
1867)
# Minnesota (
January 16,
1867)
# Maine (
January 19,
1867)
# Nevada (
January 22,
1867)
# Indiana (
January 23,
1867)
# Missouri (
January 25,
1867)
# Rhode Island (
February 7,
1867)
# Wisconsin, (
February 7,
1867)
# Pennsylvania (
February 12,
1867)
# Massachusetts (
March 20,
1867)
# Nebraska (
June 15,
1867)
# Iowa (
March 16,
1868)
# Arkansas (
April 6,
1868)
# Florida (
June 9,
1868)
# North Carolina, (
July 4,
1868, after having rejected it on
December 14,
1866)
# Louisiana (
July 9,
1868, after having rejected it on
February 6,
1867)
# South Carolina (
July 9,
1868, after having rejected it on
December 20,
1866)
However, Ohio passed a resolution that purported to withdraw their ratification on
January 15,
1868. The New Jersey legislature also tried to rescind their ratification on
February 20,
1868. The New Jersey governor had vetoed their withdrawal on
March 5, and the legislature overrode the veto on
March 24. Accordingly, on
July 20,
1868,
Secretary of State William H. Seward certified that the amendment had become part of the constitution if the rescissions were ineffective. Congress responded on the following day, declaring that the amendment was part of the constitution and ordering Seward to promulgate the Amendment.
Meanwhile, two additional states had ratified the amendment:
# Alabama (
July 13,
1868, the date the ratification was "approved" by the governor)
# Georgia (
July 21,
1868, after having rejected it on
November 9,
1866)
Thus, on
July 28, Seward was able to certify unconditionally that the Amendment was part of the constitution without having to endorse Congress's assertion that the withdrawals were ineffective.
There were further, purely symbolic, ratifications and rescissions:
# Oregon (withdrew
October 15,
1868)
# Virginia (
October 8,
1869, after having rejected it on
January 9,
1867)
# Mississippi (
January 17,
1870)
# Texas (
February 18,
1870, after having rejected it on
October 27,
1866)
# Delaware (
February 12,
1901, after having rejected it on
February 7,
1867)
# Maryland (1959)
# California (1959)
# Kentucky (1976, after having rejected it on
January 8,
1867)
Controversy over ratification
A number of individuals argue that the ratification of the 14th Amendment violated Article V of the Constitution. For instance,
Bruce Ackerman argues that:
★ The 14th Amendment was proposed by a rump Congress that did not include representatives and senators from most ex-Confederate states, and, had those congressmen been present, the Amendment would never have passed.
★ Ex-Confederate states were counted for Article V purposes of ratification, but were not counted for Article I purposes of representation in Congress.
★ The ratifications of the ex-Confederate states were not truly free, but were coerced. For instance, many ex-Confederate states had their readmittance to the Union conditioned on ratifying the 14th Amendment.
[10]
In 1968, the Utah Supreme Court diverged from the
habeas corpus issue in a case to express its resentment against recent decisions of the U.S. Supreme Court under the Fourteenth Amendment, and to attack the Amendment itself:
In order to have 27 states ratify the Fourteenth Amendment, it was necessary to count those states which had first rejected and then under the duress of military occupation had ratified, and then also to count those states which initially ratified but subsequently rejected the proposal.
To leave such dishonest counting to a fractional part of Congress is dangerous in the extreme. What is to prevent any political party having control of both houses of Congress from refusing to seat the opposition and then without more passing a joint resolution to the effect that the Constitution is amended and that it is the duty of the Administrator of the General Services Administration to proclaim the adoption? Would the Supreme Court of the United States still say the problem was political and refuse to determine whether constitutional standards had been met?
How can it be conceived in the minds of anyone that a combination of powerful states can by force of arms deny another state a right to have representation in Congress until it has ratified an amendment which its people oppose? The Fourteenth Amendment was adopted by means almost as bad as that suggested above.[11]
A resolution passed by the Georgia legislature, the
1957 Georgia Memorial to Congress, disputes the validity of ratification of the Amendment.
Relevant court cases
Notes
1. Amendments to the Constitution of the United States of America, Findlaw.com, Footnote 6. Retrieved 2007-03-05.
2. ''In Re Slaughterhouse Cases'', 83 U.S. 36 (1872) (Swayne, J., dissenting).
3. Rights of Citizens and Persons under the Fourteenth Amendment, , Chin-Yung, Yen, New Era Publishing Co, , Native Americans were later granted U.S. citizenship by Congress in the Indian Citizenship Act of 1924.
4. Race, Rights, and the Asian American Experience, , Angelo N, Ancheta, Rutgers University Press, ,
5. The Heritage Guide to the Constitution, , , The Heritage Foundation, Heritage Foundation, ,
6. The Founders on Citizenship and Immigration: Principles and Challenges in America, , Edward J, Erler, Rowman & Littlefield, ,
7. In ''INS v. Rios-Pineda'' () the Supreme Court opinion referred to a child born to deportable aliens as "a citizen of this country"
8. In ''Plyler v. Doe'' () the court stated in ''dicta''that illegal immigrants are "within the jurisdiction" of the states in which they reside, and added in a footnote that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
9. Ratification of Constitutional Amendments
10. See Amar, Akhil Reed, ''America's Constitution: A Biography'', p. 364–365; see also Douglas H. Bryant, ''Unorthodox and Paradox: Revisiting the Ratification of the Fourteenth Amendment'', Alabama Law Review, Winter 2002.
11. ''Dyett v. Turner'', 439 P.2d 266 (Utah 1968) (dicta).
References
★
Amendments to the Constitution of the United States (PDF, providing text of amendment and dates of ratification)
External links
★
Fourteenth Amendment and related resources at the Library of Congress
★
National Archives: 14th Amendment
★
CRS Annotated Constitution: 14th Amendment
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