Fourteenth Amendment to the United States Constitution

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File:14th Amendment Pg1of2 AC.jpg Page 1 of Amendment XIV in the National Archives

File:14th Amendment Pg2of2 AC.jpg Page 2 of the amendment

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted after the Civil War as one of the Reconstruction Amendments on July 9, 1868.

The Fourteenth Amendment provides a broad definition of citizenship, overruling the decision in Dred Scott v. Sandford (1857), which held that blacks could not be citizens of the United States.

Its Due Process Clause has been used to make most of the Bill of Rights applicable to the states. This clause has also been used to recognize substantive due process rights, such as parental and marriage rights, and procedural due process rights. Certain steps are required before depriving people (individual and corporate) of life, liberty, or property.

The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions. This clause later became the basis for Brown v. Board of Education (1954), the Supreme Court decision which precipitated the dismantling of racial segregation in the United States.

The amendment also includes a number of clauses dealing with the Confederacy and its officials.

Text

“

Section 1. 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. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

”

Citizenship and civil rights

Background

Section 1, arguably the most far-reaching section of the Fourteenth Amendment, formally defines citizenship and protects a person's civil and political rights from being abridged or denied by any state. This represented the Congress's overruling of the Dred Scott decision to the extent that decision held black people 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 persons born in the United States; the framers of the Fourteenth Amendment added this principle into the Constitution to prevent the Supreme Court from ruling the Civil Rights Act of 1866 to be unconstitutional for lack of congressional authority to enact such a law or a future Congress from altering it by a mere 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, forcing them to enter into year-long labor contracts, and by preventing them from suing or testifying in court.

Finally, this section was in response to violence against black people within the southern states. A Joint Committee on Reconstruction found that only a Constitutional amendment could protect the rights and welfare of black people within those states.

Citizenship Clause

Main article: Citizenship Clause

There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment. During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as excluding American Indians who maintain their tribal ties, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." He was supported by other senators, including Edgar Cowan, Reverdy Johnson, and Senate Judiciary Committee Chairman Lyman Trumbull. Howard further stated the term jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now" and that the United States possessed a "full and complete jurisdiction" over the person described in the amendment. Other senators, including Senator John Conness, supported the amendment, believing citizenship should cover all children born in the United States.

In Elk v. Wilkins, Template:Ussc, the clause's meaning was tested regarding whether birth in the United States automatically extended national citizenship. The Supreme Court held that Native Americans who voluntarily quit their tribes did not automatically gain national citizenship.

The clause's meaning was tested again in the case of United States v. Wong Kim Ark, Template:Ussc. The Court ruled that children of non-citizen Chinese immigrants possessed national citizenship by being born in United States.

The difference between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark. Wong Kim Ark and subsequent cases did not explicitly decide whether such children are entitled to birthright citizenship via the amendment, but such birthright is generally 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 Plyler v. Doe, Template:Ussc, and INS v. Rios-Pineda, Template:Ussc.

Loss of national 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 United States citizen.
• Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the State Department or through other actions that demonstrate desire to give up national citizenship.

For much of the country's history, voluntary acquisition or exercise of a foreign citizenship was considered sufficient cause for revocation of national 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, Template:Ussc, as well as Vance v. Terrazas, Template:Ussc, holding that the Citizenship Clause of the Fourteenth Amendment barred the Congress from revoking citizenship.

Due Process Clause

Main article: Due process

Beginning with Allgeyer v. Louisiana (1897), the Court interpreted the Due Process Clause of the Fourteenth Amendment as providing substantive protection to private contracts and thus prohibiting a variety of social and economic regulation, under what was referred to as "freedom of contract". 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). However, the Court did uphold some economic regulation such as state prohibition laws (Mugler v. Kansas), 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 repudiated the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937). In the past forty years it has recognized a number of "fundamental rights" of individuals, such as privacy, which the states can regulate only under narrowly defined circumstances. The Court has also significantly 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.

The Court has ruled that in certain circumstances, the Due Process Clause requires a judge to recuse himself on account of concern of there being a conflict of interest. For example, on June 8, 2009, in Caperton v. A.T. Massey Coal Co., the Court ruled that a justice of the Supreme Court of Appeals of West Virginia had to recuse himself from a case involving a major contributor to his election to that court.

Equal Protection Clause

Main article: Equal Protection Clause

File:Brown V. Board of Education Exhibit.jpg

U.S. circuit judges Robert A. Katzmann, Damon J. Keith, and Sonia Sotomayor at a 2004 exhibit on the Fourteenth Amendment, Thurgood Marshall, and Brown v. Board of Education

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)), as violations 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 similar facilities—the formation of the “separate but equal” doctrine. 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 colleges from having 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 repeated attempts at circumvention. This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation (see Milliken v. Bradley (1974)). 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 and ethnic groups, such as Mexican Americans 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 standard than it has applied to governmental discrimination on the basis of race (United States v. Virginia (1996); Levy v. Louisiana (1968)).

The Supreme Court, since Wesberry v. Sanders (1964) and Reynolds v. Sims (1964), has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats on a "one man, one vote" basis. The Court has also struck down redistricting plans in which race was a key 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.

Incorporation

Main articles: Incorporation of the Bill of Rights and Privileges or Immunities Clause

In Barron v. Baltimore (1833), the Supreme Court ruled that the Bill of Rights did not apply to the states. While many state constitutions are modeled after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. According to Akhil Reed Amar, 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 as falling within the "privileges or immunities" safeguarded by the amendment. However, in the Slaughter-House Cases (1873), the Supreme Court ruled that the amendment's Privileges or Immunities Clause was limited to "privileges or immunities" granted to citizens by the federal government by virtue of national citizenship. The Court further held in the Civil Rights Cases (1883) that the amendment was limited to "state action" and, therefore, 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 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. The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Second, Fourth and Sixth Amendments, the Cruel and Unusual Punishment Clause of the Eighth Amendment and the Fifth Amendment (except for its Grand Jury Clause). While the Third Amendment has not been applied to the states by the Supreme Court, the Second Circuit ruled that it did apply to the states within that circuit's jurisdiction in Engblom v. Carey. The Seventh Amendment has been held not to be applicable to the states.

Apportionment of Representatives

Section 2 altered the rules for the apportioning of Representatives in the Congress to states. It counts all residents for apportionment, overriding Article I, Section 2, Clause 3 of the Constitution, which counted only three-fifths of each state's slave population.

Section 2 also reduces a state's apportionment if it wrongfully denies any adult male's right to vote, while explicitly permitting felony disenfranchisement. However, this provision was never enforced while the southern states continued to use various pretexts to prevent many blacks from voting right up until the passage of Voting Rights Act in 1965.

Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment, but the Supreme Court has acknowledged the provisions of Section 2 in recent times. For example, in Richardson v. Ramirez, Template:Ussc the Court cited Section 2 as justification for the states disenfranchising felons. In his dissent, Justice Marshall explained the history of the Section 2 in relation to the Post-Civil War Reconstruction era:

The historical purpose for section 2 itself is, however, relatively clear and, in my view, dispositive of this case. The Radical Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance. There were two alternatives available—either to limit southern representation, which was unacceptable on a long-term basis, or to insure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time. Section 2 of the Fourteenth Amendment was the resultant compromise. It put Southern States to a choice—enfranchise Negro voters or lose congressional representation. [...] Section 2 provides a special remedy—reduced representation—to cure a particular form of electoral abuse—the disenfranchisement of Negroes.

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. In 1898, the Congress enacted a general removal of Section 3's limitation.

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 the legitimacy of all United States public debt legislated by the Congress. It also confirmed that neither the United States nor any state would pay for the loss of slaves or debts that had been incurred by the Confederacy. For example, several English and French banks had lent money to the South during the war. In Perry v. United States (1935), the Supreme Court ruled that voiding a United States government bond "went beyond the congressional power" on account of Section 4.

Power of enforcement

Main article: Congressional power of enforcement

Section 5, the last section, was construed broadly by the Supreme Court in Katzenbach v. Morgan (1966). However, the Court, in City of Boerne v. Flores (1997), said:

Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.

Proposal and ratification

The United States Congress proposed the Fourteenth Amendment on June 13, 1866 and, by July 9, 1868, three-fourths of the states (28 of 37) 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 all of the 37 states that were in the Union in 1868:

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

Supreme Court cases

Citizenship

1857 – 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

Corporate personhood

• 1886 – Santa Clara County v. Southern Pacific Railroad

Privileges or immunities

1868 – Crandall v. Nevada 1873 – Slaughter-House Cases 1908 – Twining v. New Jersey 1920 – United States v. Wheeler

1948 – Oyama v. California 1999 – Saenz v. Roe

Procedural due process/Incorporation

Template:Col-3

• 1833 – Barron v. Baltimore
• 1873 – Slaughter-House Cases
• 1883 – Civil Rights Cases
• 1884 – Hurtado v. California
• 1897 – Chicago, Burlington & Quincy Railroad v. Chicago
• 1900 – Maxwell v. Dow
• 1908 – Twining v. New Jersey
• 1925 – Gitlow v. New York
• 1932 – Powell v. Alabama

Template:Col-3

• 1934 – Snyder v. Massachusetts
• 1937 – Palko v. Connecticut
• 1947 – Adamson v. California
• 1952 – Rochin v. California
• 1961 – Mapp v. Ohio
• 1962 – Robinson v. California
• 1963 – Gideon v. Wainwright
• 1964 – Malloy v. Hogan
• 1966 – Miranda v. Arizona

Template:Col-3

• 1967 – Reitman v. Mulkey
• 1968 – Duncan v. Louisiana
• 1969 – Benton v. Maryland
• 1970 – Goldberg v. Kelly
• 1972 – Furman v. Georgia
• 1974 – Goss v. Lopez
• 1975 – O'Connor v. Donaldson
• 1976 – Gregg v. Georgia
• 2010 – McDonald v. Chicago

Substantive due process

1857 – Dred Scott v. Sandford 1876 – Munn v. Illinois 1887 – Mugler v. Kansas 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 Co. v. Parrish 1973 – Roe v. Wade 1996 – BMW of North America, Inc. v. Gore 2003 – Lawrence v. Texas

Equal protection

1880 – 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 1976 – Examining Board v. Flores de Otero 1978 – Regents of the University of California v. Bakke 1982 – Mississippi University for Women v. Hogan 1986 – Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico 1996 – United States v. Virginia 1996 – Romer v. Evans 2000 - Bush v. Gore

Apportionment of Representatives

• 1974 – Richardson v. Ramirez

Power of enforcement

1883 – Civil Rights Cases 1966 – Katzenbach v. Morgan 1997 – City of Boerne v. Flores 2000 – United States v. Morrison

2001 – Board of Trustees of the University of Alabama v. Garrett 2003 – Nevada Department of Human Resources v. Hibbs 2004 – Tennessee v. Lane

External links

• "Amendments to the Constitution of the United States" (PDF). GPO Access. http://www.gpoaccess.gov/constitution/pdf/con001.pdf. Retrieved September 11, 2005.  (PDF, providing text of amendment and dates of ratification)
• CRS Annotated Constitution: Fourteenth Amendment
• Fourteenth Amendment and related resources at the Library of Congress
• National Archives: Fourteenth Amendment

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