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Fourteenth Amendment to the United States Constitution
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The Fourteenth Amendment (Amendment XIV) to the United States Constitution is one of the post-Civil War Reconstruction Amendments that was first intended to secure the rights of former slaves.
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The Fourteenth Amendment (Amendment XIV) to the United States Constitution is one of the post-Civil War Reconstruction Amendments that was first intended to secure the rights of former slaves. It was proposed on June 13, 1866 and ratified on July 9, 1868.
The amendment provides a broad definition of citizenship, overruling Dred Scott v. Sandford (1857) which had excluded slaves and their descendants from possessing Constitutional rights. The amendment requires states to provide equal protection under the law to all people within their jurisdictions and was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been used to apply most of the Bill of Rights to the states.
The other two Reconstruction Amendments are the Thirteenth Amendment (banning slavery) and the Fifteenth Amendment (banning race-based voting qualifications). In The Slaughterhouse Cases (1872), dissenting Supreme Court Justice Swayne wrote, "Fairly construed, these amendments may be said to rise to the dignity of a new Magna Carta."
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Citizenship and civil rights
Section 1 of the Fourteenth Amendment formally defines citizenship and protects people's civil rights from infringement by any state. This represented the Congress' reversal of that portion of the Dred Scott decision that declared that blacks 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 added this principle into the Constitution to keep the Supreme Court from ruling the Civil Rights Act of 1866 to be unconstitutional for want of Congressional authority to pass such a law or a future Congress from altering it by a bare majority vote.
This section was also in response to the Black Codes which 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. This section gave rise to three major legal doctrines: (1) Due Process; (2) Equal Protection; (3) Incorporation.
Citizenship Clause
The purpose behind the Citizenship Clause was to provide citizenship to former slaves born in the United States and to provide a formal definition of U.S. citizenship.
During the original debate over the amendment Senator Jacob M. Howard of Michiganthe author of the citizenship clausedescribed the clause as excluding not only Indians but persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers. Howard also stated the word jurisdiction meant the United States possessed a full and complete jurisdiction over the person described in the amendment. Such meaning precluded citizenship to any person who was beholden, in even the slightest respect, to any sovereignty other than a U.S. state or the federal government.
In Elk v. Wilkins, , the clause's meaning was tested regarding whether it meant that anyone born in the United States would be a citizen regardless of the parents' nationality. In that case, the Supreme Court held that the children of Native Americans were not citizens, despite the fact that they were born in the United States.
The meaning was tested again in the case of United States v. Wong Kim Ark, , regarding children of non-citizen Chinese immigrants born in United States. The court ruled that the children were U.S. citizens.
The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark. 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, although that has generally been assumed to be the case. 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, and Plyler v. Doe, . Nevertheless, some claim the Congress possesses the power to exclude such children from US citizenship by legislation.
The Constitution 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 intent 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 repudiated this concept in Afroyim v. Rusk, , as well as Vance v. Terrazas, , holding that the Citizenship Clause of the Fourteenth Amendment barred the Congress from revoking citizenship.
Due Process Clause
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 Adkins v. Children's Hospital (1923). The Court did uphold some economic regulation, however, including state prohibition laws (), laws declaring maximum hours for mine workers (Holden v. Hardy (1898)), laws declaring maximum hours for female workers (Muller v. Oregon (1908)), President Wilson's intervention in a railroad strike (Wilson v. New (1917)), as well as federal laws regulating narcotics (United States v. Doremus (1919)).
The Court overruled Lochner, Adkins and other precedents protecting "liberty of contract" in West Coast Hotel v. Parrish (1937), 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. 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. 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.
Equal Protection Clause
In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia (1880)) or discriminating against Chinese-Americans in the regulation of laundry businesses (Yick Wo v. Hopkins (1886)), under the aegis of the Equal Protection Clause. However, in Plessy v. Ferguson (1896), 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. The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908), 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 Brown v. Board of Education (1954) 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 desegregation busing decrees handed down by federal courts in many parts of the nation, including major Northern cities such as Detroit (Milliken v. Bradley (1974)) and Boston. In Hernandez v. Texas, the Court held that the Fourteenth Amendment protects those beyond the racial classes of white or "Negro," and extends to other racial groups, such as the Mexican-American in this case. 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 and illegitimate children, although it has applied a somewhat less stringent test than it has applied to governmental discrimination on the basis of race.
Though the framers of the Fourteenth Amendment did not believe it would expand voting rights (leading to the passage of the Fifteenth Amendment), the Supreme Court, since Baker v. Carr (1962) and Reynolds v. Sims (1964), has also 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.
Incorporation
Prior to the adoption of this Amendment, the Bill of Rights had been held by the Supreme Court to not apply to the states. While many states modeled their constitutions and laws after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. According to some commentators, 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 limited the reach of the Amendment by holding in the Slaughterhouse Cases (1873) 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 (1883) that the Amendment was limited to "state action" and thus did not authorize the 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.
However, by the latter half of the twentieth century, nearly all of the rights in the Bill of Rights had been applied to the states, under what is known as the incorporation doctrine. As a result, the Fourteenth Amendment not only empowered the federal courts to intervene in this area to enforce the guarantee of the Due Process and Equal Protection Clauses, but also 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.
Apportionment of Representatives
Section 2 of the Fourteenth Amendment establishes rules for the apportioning of Representatives in the 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 Article I, Section 2, Clause 3 of the Constitution, which 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 representation in the House of Representatives for states that denied men 21 and older 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. Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment, but it should be noted that the Supreme Court has acknowledged the provisions of Section 2 in modern times. For example, in Richardson v. Ramirez, the Court invoked Section 2 to justify the disenfranchisement of felons by the states. In his dissent, Justice Marshall explained the history of the Section 2 in relation to the Post-Civil War Reconstruction era:
Participants in rebellion
Section 3 prevents the election or appointment to any federal or State office of any person who had held any of certain offices and then engaged in insurrection, rebellion or treason. However, a two-thirds vote by each House of the Congress can override this limitation. A statute could not have imposed this punishment, because such a statute would have been an ex post facto law. In 1975, Robert E. Lee's citizenship was restored by a joint Congressional resolution, retroactive to June 13, 1865. In 1978, two-thirds of both Houses of Congress voted to posthumously remove the service ban from Jefferson Davis.
Validity of public debt
Section 4 confirmed that neither the United States nor any state would pay damages for the loss of slaves or debts that had been incurred by the Confederacy. For example, several English and French banks had loaned money to the South during the war.
Power of enforcement
The last section, Section 5, was construed broadly by the Warren Court in Katzenbach v. Morgan (1966), but the Rehnquist Court tended to construe it narrowly, as in City of Boerne v. Flores (1997) and Board of Trustees of the University of Alabama v. Garrett (2001). Also see Nevada Department of Human Resources v. Hibbs (2003) and Tennessee v. Lane (2004).
Proposal and ratification
The Congress proposed the Fourteenth Amendment on June 13, 1866 and on July 9, 1868, three-fourths of the states (28 of 37) 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)
*Ohio passed a resolution that purported to withdraw its ratification on January 15, 1868. The New Jersey legislature also tried to rescind its ratification on February 20, 1868. The New Jersey governor had vetoed his state's 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. The 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 the Congress's assertion that the withdrawals were ineffective.
There were additional ratifications and rescissions; by 2003, the Amendment had been ratified by every state in the Union as of 1868:
- 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)
- Oregon (1973)
- Kentucky (1976, after having rejected it on January 8, 1867)
- New Jersey (2003, after having rescinded on February 20, 1868)
- Ohio (2003, after having rescinded on January 15, 1868)
Controversy over ratification
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:
The 1957 Georgia Memorial to Congress, a resolution passed by the Georgia legislature, disputed the validity of the ratification of the Amendment.
Supreme Court cases
Citizenship
Dred Scott v. Sandford 1884 Elk v. Wilkins 1898 United States v. Wong Kim Ark 1964 Schneider v. Rusk 1967 Afroyim v. Rusk 1980 Vance v. Terrazas 1982 Plyler v. Doe
Privileges or immunities
Slaughterhouse Cases 1999 Saenz v. Roe
Procedural due process/Incorporation
Barron v. Baltimore 1883 Civil Rights Cases 1925 Gitlow v. New York 1932 Powell v. Alabama 1952 Rochin v. California 1961 Mapp v. Ohio 1962 Robinson v. California 1963 Gideon v. Wainwright 1966 Miranda v. Arizona 1967 - Reitman v. Mulkey 1970 Goldberg v. Kelly 1972 Furman v. Georgia 1974 Goss v. Lopez 1975 O'Connor v. Donaldson 1976 Gregg v. Georgia
Substantive due process
Munn v. Illinois 1897 Allgeyer v. Louisiana 1905 Lochner v. New York 1908 Muller v. Oregon 1923 Adkins v. Children's Hospital 1923 Meyer v. Nebraska 1925 Pierce v. Society of Sisters 1937 West Coast Hotel v. Parrish 1973 Roe v. Wade 1996 BMW v. Gore 2003 Lawrence v. Texas
Equal protection
Strauder v. West Virginia 1886 Yick Wo v. Hopkins 1896 Plessy v. Ferguson 1908 Berea College v. Kentucky 1917 Buchanan v. Warley 1942 Skinner v. Oklahoma 1946 Korematsu v. United States 1948 Shelley v. Kraemer 1954 Hernandez v. Texas 1954 Brown v. Board of Education 1962 Baker v. Carr 1965 Griswold v. Connecticut 1967 Loving v. Virginia 1978 Regents of the University of California v. Bakke 1982 Mississippi University for Women v. Hogan
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