Fourteenth Amendment to the United States Constitution

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Amendment XIV in the National Archives

The Fourteenth Amendment (Amendment XIV) to the United States Constitution is one of the post-Civil War amendments (known as the Reconstruction Amendments), first 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 was ratified on July 9, 1868.^[1] It is perhaps the most significant structural change to the Constitution since the passage of the United States Bill of Rights.

The amendment provides a broad definition of United States citizenship, superseding the U.S. Supreme Court's decision in Dred Scott v. Sandford that had excluded African Americans. The amendment requires states to provide equal protection under the law to all persons 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 been the basis of much important and controversial case law regarding 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]

[edit] Text

[edit] Citizenship and civil rights

Main articles: Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause

The first section formally defines citizenship and protects people's civil rights from infringement by any State. This represented the Congress's 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.

[edit] Citizenship

The purpose of Section 1 was to provide that former slaves born in the United States would be citizens.

In 1884 the meaning was tested as to whether it meant that anyone born in the United States would be a citizen regardless of the parents' nationality, in the case of Elk v. Wilkins where the parents were Native American. The Supreme Court held that the children of Native Americans were not citizens despite the fact that they were born in the United States.

In 1898 the meaning was tested again in the case of United States v. Wong Kim Ark regarding children of Chinese citizens born in United States. This time the Supreme Court ruled that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee—legally termed jus soli or "birthright citizenship"— does not exist in most of Europe or Asia, although it is part of English common law and is common in the Americas.

Since 1898 the phrase and subject to the jurisdiction thereof has been interpreted to mean that there are some exceptions to the universal rule that birth in United States automatically grants citizenship. In the case of United States v. 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.

It was years later that the exclusion of Native Americans was eliminated by the Indian Citizenship Act of 1924.

The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark.^[3] 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,^[4] although it has generally been assumed that they are.^[5] 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^[6] and Plyler v. Doe.^[7] Nevertheless, some claim that Congress possesses the power to exclude such children from US citizenship by legislation:^[8] 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 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.^[9] 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 Fourteenth Amendment barred the Congress from revoking citizenship.

[edit] 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 had been held by the Supreme Court to not apply to the States.^[10] 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.^[11] However, the Supreme Court sought to limit 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 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 adoption 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.

The Court went even further in restricting the Equal Protection Clause 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."^[12]

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 it has applied 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 people 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^[13] (leading to the passage of the Fifteenth Amendment, which prohibits racial discrimination in voting rights), 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.

[edit] Apportionment of Representatives

The second section 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 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.^[14] Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment,^[15] 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, 418 U.S. 24 (1974) 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:

[edit] Participants in rebellion

The third section 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. 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 1975, Robert E. Lee's citizenship was restored by a joint congressional resolution, retroactive to June 13, 1865.^[17] In 1978, two-thirds votes of both Houses of Congress were obtained, posthumously removing the service ban from Jefferson Davis.^[18][19]

[edit] Validity of public debt

The fourth section confirmed that the United States would not 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.^[20]

[edit] Power of enforcement

Main article: 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) 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).

[edit] Proposal and ratification

The Congress proposed the Fourteenth Amendment on June 13, 1866.^[21] There being thirty-seven states in the Union at that time, the ratification (per Article V of the Constitution) of twenty-eight were necessary for the Amendment's adoption. By July 9, 1868, twenty-eight states had ratified the Amendment:

1. Connecticut (June 25, 1866)
2. New Hampshire (July 6, 1866)
3. Tennessee (July 19, 1866)
4. New Jersey (September 11, 1866)
5. Oregon (September 19, 1866)
6. Vermont (October 30, 1866)
7. Ohio (January 4, 1867)*
8. New York (January 10, 1867)
9. Kansas (January 11, 1867)
10. Illinois (January 15, 1867)
11. West Virginia (January 16, 1867)
12. Michigan (January 16, 1867)
13. Minnesota (January 16, 1867)
14. Maine (January 19, 1867)
15. Nevada (January 22, 1867)
16. Indiana (January 23, 1867)
17. Missouri (January 25, 1867)
18. Rhode Island (February 7, 1867)
19. Wisconsin, (February 7, 1867)
20. Pennsylvania (February 12, 1867)
21. Massachusetts (March 20, 1867)
22. Nebraska (June 15, 1867)
23. Iowa (March 16, 1868)
24. Arkansas (April 6, 1868)
25. Florida (June 9, 1868)
26. North Carolina, (July 4, 1868, after having rejected it on December 14, 1866)
27. Louisiana (July 9, 1868, after having rejected it on February 6, 1867)
28. 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:

1. Alabama (July 13, 1868, the date the ratification was "approved" by the governor)
2. 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^[22]:

1. Oregon (withdrew October 15, 1868)
2. Virginia (October 8, 1869, after having rejected it on January 9, 1867)
3. Mississippi (January 17, 1870)
4. Texas (February 18, 1870, after having rejected it on October 27, 1866)
5. Delaware (February 12, 1901, after having rejected it on February 7, 1867)
6. Maryland (1959)
7. California (1959)
8. Oregon (1973)
9. Kentucky (1976, after having rejected it on January 8, 1867)
10. New Jersey (2003, after having rescinded on February 20, 1868
11. Ohio (2003, after having rescinded on January 15, 1868)

[edit] Controversy over ratification

A number of individuals argue that the ratification of the Fourteenth Amendment violated Article V of the Constitution. For instance, Bruce Ackerman argues that:

• The Fourteenth Amendment was proposed by a rump Congress that did not include representatives and senators from most of the former Confederate states, and, had those congressmen been present, the Amendment would never have passed.
• Former Confederate states were counted for Article V purposes of ratification, but were not counted for Article I purposes of representation in the Congress.
• The ratifications of the former Confederate states were not truly free, but were coerced. For instance, many former Confederate states had their readmittance to the Union conditioned on ratifying the Fourteenth Amendment.^[23]

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 the 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 the 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.^[24]

The 1957 Georgia Memorial to Congress, a resolution passed by the Georgia legislature, disputed the validity of the ratification of the Amendment.

[edit] Supreme Court cases

[edit] Notes

[edit] References

• Amendments to the Constitution of the United States. GPO Access. Retrieved on September 11, 2005. (PDF, providing text of amendment and dates of ratification)

[edit] External links

• Fourteenth Amendment and related resources at the Library of Congress
• National Archives: Fourteenth Amendment
• CRS Annotated Constitution: Fourteenth Amendment
• Jon Roland article about Amendment's intent