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14th Amendment Formally Adopted

14th Amendment Formally Adopted

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Following its ratification by the necessary three-quarters of U.S. states, the 14th Amendment, granting citizenship to all persons born or naturalized in the United States—including formerly enslaved people—is officially adopted into the U.S. Constitution. Secretary of State William Seward issues a proclamation certifying the amendment.

Two years after the Civil War, the Reconstruction Acts of 1867 divided the South into five military districts, where new state governments, based on universal manhood suffrage, were to be established. Thus began the period known as Radical Reconstruction, which saw the 14th Amendment, which had been passed by Congress in 1866, ratified in July 1868. The amendment resolved pre-Civil War questions of African American citizenship by stating that “all persons born or naturalized in the United States…are citizens of the United States and of the state in which they reside.” The amendment then reaffirmed the privileges and rights of all citizens, and granted all these citizens the “equal protection of the laws.”

In the decades after its adoption, the equal protection clause was cited by a number of African American activists who argued that racial segregation denied them the equal protection of law. However, in 1896, the U.S. Supreme Court ruled in Plessy v. Ferguson that states could constitutionally provide segregated facilities for African Americans, so long as they were equal to those afforded white persons. The Plessy v. Ferguson decision, which announced federal toleration of the so-called “separate but equal” doctrine, was eventually used to justify segregating all public facilities, including railroad cars, restaurants, hospitals and schools. However, “colored” facilities were never equal to their white counterparts, and African Americans suffered through decades of debilitating discrimination in the South and elsewhere. In 1954, Plessy v. Ferguson was finally struck down by the Supreme Court in its ruling in Brown v. Board of Education of Topeka.

READ MORE: When Did African Americans Get the Right to Vote?

July 28, 1868: The 14th Amendment was adopted

Photo by Hulton Archive/Getty Images

America is the land where dreams get started. Back in the day, however, slaves were stuck with virtually nothing. Instead of dreams, they were surrounded by constant nightmares with no escape. One crucial amendment broke down the barriers set during wartime.

14th Amendment Formally Adopted - HISTORY

On July 9, 1868, the last of the 28 states needed to approve the Fourteenth Amendment acted, and Secretary of State William Henry Seward formally announced the ratification on July 28. It was a momentous event, a change to our constitutional system so fundamental that historians have put it on a par with the ratification of the original Constitution itself. In many ways, it gave Americans a new constitution.

On the most basic level, the Fourteenth Amendment set the terms for the restoration of the Union of the states after the Civil War.

The second section revised the way representation in Congress was apportioned, aligning representation more closely with the voting population. Unless that was changed, southerners would gain representation in Congress (and therefore the Electoral College) by virtue of the emancipation of their slaves they had so strongly resisted, even though they did not allow African Americans to vote or hold office.

The third section disqualified anyone who had previously taken an oath to support the Constitution but then had joined the rebellion from holding state or federal office. The disqualification could be removed only by a two-thirds vote of Congress. The fourth section forbade payment of any of the debts Confederates had incurred during the insurrection. The fifth section empowered Congress to enforce the other sections by appropriate legislation.

But by far the most important was the first section. That section carried forward the implications of the Thirteenth Amendment that had abolished slavery. It declared all persons born in the United States and subject to its jurisdiction to be citizens of the United States and the states where they resided. And it barred states from abridging the rights of citizens depriving any person of life, liberty, or property without due process of law or denying the any person the equal protection of the laws.

The first section of the Fourteenth Amendment revolutionized the constitutional system in three ways.

First, it made citizens of everyone born in the United States, except Indians subject to tribal rather than U.S. authority. (Congress did not make all Indians citizens until 1924.) This provision swept away the state laws and judicial decisions that had limited citizenship to white persons, as well as the Supreme Court&rsquos famous Dred Scott decision, which had applied the same rule to United States citizenship.

Second, the Amendment for the first time set general national standards that the states had to meet when establishing and enforcing state laws. Third, the Fourteenth Amendment was phrased in a way that enabled state and federal courts to intervene when its provisions were violated.

Over time, this third change has proved particularly important for our system.

Before the Civil War, state and federal courts were quite reluctant to rule laws unconstitutional. They were especially reluctant to do so to protect individuals and minority groups from hostile majorities. The Supreme Court had said it would intervene directly against state laws only when they violated expressly stated constitutional prohibitions. That meant that the provisions of the Bill of Rights, the main listing of Americans&rsquo civil and procedural rights, did not apply against the states.

By stating explicitly that &ldquono State shall&rdquo abridge the rights of citizens, deny due process, or deprive persons of equal protection of the law, the Fourteenth Amendment met the Supreme Court&rsquos requirement. Moreover, it mandated that that courts intervene to protect very vaguely defined rights. What constitutes due process? When does a state law or action deny equal protection? Inevitably, judges would have to decide what the concepts meant. Furthermore, these were rights of individuals to due process and minority groups to equal protection that the courts had never shown much interest in safeguarding.

A fourth change could have been even more momentous. The fifth section, which empowered Congress to enforce the Amendment by appropriate legislation, applied to the first section as well as the others. There is evidence that the framers of the Amendment intended Congress to be as active, or even more active, than the courts in protecting individual and minority rights.

But that did not come to pass. The &ldquono state shall&rdquo language was ideally suited to court rather than congressional enforcement.

The Supreme Court reinforced this fact by ruling that the Amendment gave Congress power only to counteract state action. It did not delegate power to counteract private denial of rights. The &ldquostate-action doctrine&rdquo has constrained congressional authority to protect rights ever since. It has been easier to argue that denial of rights inhibits interstate commerce than to rely on the Fourteenth Amendment.

The proposed Fourteenth Amendment was very controversial. President Andrew Johnson, the Tennessee loyalist who succeeded Abraham Lincoln as president, fought it tooth and nail as did Northern Democrats.

President Andrew Johnson (left), and a message he sent to Congress in June 1866, voicing his displeasure with the Fourteenth Amendment as it was being sent to the states for ratification (right) (Library of Congress).

White southerners resisted almost unanimously. Only after northern voters backed Republicans overwhelmingly in the 1866 congressional elections and after Republican congressmen made ratification a condition for the restoration of any southern state, did they acquiesce.

For a long time, judges remained reluctant to undertake their new role. They distinguished between the broad rights associated with state citizenship and the limited rights associated with federal citizenship, saying the Amendment protected only the latter. They said that &ldquodue process&rdquo did not require observing any of the rights specified in the Bill of Rights. They ruled that reasonable discriminations based on race did not deprive anyone of equal protection of the laws.

But that slowly changed. Business people demanded judicial protection from laws and government actions that infringed on property rights. The courts began protecting property rights as early as the 1880s and 1890s. Black Americans and their sympathizers demanded that the courts protect equal rights. When state and federal laws suppressed criticism of the government during World War I, progressive lawyers and others formed civil liberties organizations to demand freedom of speech and the press.

Civil libertarians called on the courts to protect people from the excesses of the Red Scare of 1919 and the Ku Klux Klan in the 1920s. The courts began to look to the Fourteenth Amendment to find the protections for due process and equal rights they now wanted to enforce.

Slowly, they interpreted the Fourteenth Amendment to impose on the states most of the rights listed in the Bill of Rights. With Brown v. Board of Education, the 1954 decision ruling government-required school segregation unconstitutional, the Supreme Court began to overturn all government-sponsored racial discrimination. In the seventy-plus years since, state and federal courts have extended the principle to age and gender discrimination, aided by supportive state and federal legislation.

By the late twentieth century Americans accorded the courts, and especially the United States Supreme Court, a special, primary role in the protection of civil rights and equality before the law. We now consider such judicial review of government action a central part of the American constitutional system.

It has proven influential around the world&mdashso much so that giving courts this central responsibility is often considered an essential element of any constitutional system that respects the rule of law. Perhaps the world would have reached that conclusion without the American example. But it would not have had that example without the ratification of the Fourteenth Amendment.

Was the Fourteenth Amendment Constitutionally Adopted?

During and after the Civil War, Southerners repeatedly declared that the cause for which they fought was the “sublime moral principle” of states’ rights. Given such protestations, and given the history of southern resistance to federal authority throughout the antebellum period, it is easy enough to associate states’ rights exclusively with the South—but it is also mistaken. Connecticut and Massachusetts endorsed interposition in 1808 the Hartford Convention of 1814 did the same. In 1840 Vermont made it a crime to aid in the capture of a runaway slave, despite the federal fugitive slave act. In 1846 the Massachusetts House of Representatives declared the Mexican War unconstitutional a decade later Wisconsin asserted the supremacy of its supreme court over the United States Supreme Court.

Yet it was the seceding states that had carried the doctrine of states’ rights to the extreme, and northern Radical Republicans, in their zeal to punish, plunder, and reconstruct the South, were willing to undermine the doctrine as part of their undertaking. Whatever else the Radicals had in mind in pushing through the Reconstruction Amendments—their motives were diverse and conflicting—it is clear that some of them, at least, intended that the Fourteenth should greatly increase the powers of Congress at the expense of the states. It is also clear that the process of adopting the Fourteenth Amendment was marred by repeated irregularities. President Andrew Johnson questioned the legitimacy of an amendment proposed by a Congress that represented only twenty-five of the thirty-six states. Three northern states that ratified the proposal later rescinded their votes. All the southern states except Tennessee at first voted against the amendment, despite an implied threat that they would not be readmitted to the Union they changed their stands only after the threat was made explicit. And throughout the debates on the amendment, friends and foes alike disagreed as to whether approval of three-quarters of twenty-five states or of thirty-six would be necessary.

Ultimately, the issue would turn on the question whether the southern states had legally seceded. Both presidents Lincoln and Johnson and the Supreme Court held to the contrary. Radicals in Congress disagreed, but the Congress as a whole followed an inconsistent course. For all these reasons,the constitutionality of the adoption of the Fourteenth Amendment remains open to question.

Historiographic Background

The subject has a historiography, and not altogether a savory one. In 1953, after the first round of arguments in Brown v. Board and the other school desegregation cases, the Supreme Court ordered counsel to answer certain queries regarding various events connected with the adoption of the Fourteenth Amendment. The Court was specifically interested in the intent of the framers respecting segregation, but a Tulane law professor, Walter J. Suthon, Jr., responded by publishing an article questioning the “dubious origin” of the amendment. In it, he traced the origins of Article V, the amending clause of the Constitution, put together a brief history of the proposal of the amendment and its forced ratification in the South, and concluded that the intent of the framers was irrelevant, for the whole proceeding, start to finish, was unconstitutional.

In 1958, after the decision in Brown v. Board and amidst massive southern resistance to desegregation, a Houston lawyer named Pinckney G. McElwee published an article in the South Carolina Law Quarterly that reached the same conclusion. McElwee’s study was more thorough than Suthon’s had been, and he quoted from and cited more contemporary documents, but his piece was marred by a certain shrillness of tone.

Two years later, the Georgia Bar Journal published “a statement issued by the State Sovereignty Commission of Louisiana” entitled “Unconstitutional Creation of the Fourteenth Amendment.” The statement rehearsed the facts, garbling several of them along the way, called for the Supreme Court to declare the amendment illegal, and concluded that the amendment was mistitled and should be designated “Military Edict No. 1.” Baylor Law Review produced a shorter-and more accurate and more moderate-version of the argument in 1961, and the Alabama Lawyer reprinted that article in 1963.

All such efforts were directed against the desegregation decisions, and in 1966 a California lawyer named Ferdinand Fernandez took pen in hand to write a long and angry rebuttal. He succeeded in answering some of the critics’ charges, but he misunderstood the main thrust of their arguments and ended up knocking over straw men. At that point legal scholars and historians largely abandoned the issue-though it occasionally cropped up in the literature for another two decades-and concentrated their efforts instead upon studying the intent of the framers. They have generated a huge body of literature on that subject, but shed little light on the question of the constitutionality of the adoption procedure. Among such scholars, Alfred Avins, professor of law at Memphis State University, deserves special mention because of his herculean efforts in compiling a volume covering the legislative history and debates in Congress on all three Reconstruction amendments.

Avins’ volume is invaluable to anyone studying the origins of the Fourteenth Amendment, as are two studies by Joseph B. James. The first is The Framing of the Fourteenth Amendment, published in 1956. The second is a sequel, The Ratification of the Fourteenth Amendment, published in 1984. James is judicious and cautious, and he avoids drawing any conclusions about whether the amendment was constitutionally adopted, but he provides abundant material from which readers can draw their own conclusions.

Passage in Congress

To turn now to substantive aspects of the question, the first irregularity-the passage of the amendment by an incomplete Congress-can be disposed of rather briefly. The final vote in the House of Representatives was 120 to 32, with 32 abstentions-far more than the requisite two-thirds majority. But the eleven states of the erstwhile Confederacy were entitled to and had elected 61 representatives who had been denied seats, all of whom would doubtless have voted in the negative. Had their votes been cast, the majority would have been only 56 percent. Besides, the majority included representatives from the newly admitted states of West Virginia and Nevada, the constitutionality of whose statehood was doubtful. In the Senate a similar situation pertained. The vote there was 33 to 11, with 5 abstentions. If the twenty-two seats of the former Confederate states were added in the negative column, there would have been a tie vote, and if the four seats held by West Virginia and Nevada were subtracted from the affirmative column, the aye votes would have fallen short of even a simple majority.

But that does not exhaust the question. Article V provides that “Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments.” The wording is not explicit as to whether “two thirds of both Houses” means two-thirds of the members or two-thirds of those present and voting. But Article I, Section 5, defines a quorum as a simple majority, gives each house power to judge the qualifications of its members, and authorizes each to make its own rules. It follows logically that when the Thirty-ninth Congress approved the Fourteenth Amendment in 1866 by more than two-thirds of the members present in each house, it was acting within the framework of the rules as established in the Constitution.

There was ample precedent for so reasoning. Though the records do not itemize the voting in the First Congress on the amendments that became the Bill of Rights, it is clear from the debates that the members read “two thirds of both Houses” to mean two-thirds of a quorum. When the Twelfth Amendment was under discussion fourteen years later, the subject was debated at length. The Senate passed the measure by more than two-thirds of those present, but by one vote less than two-thirds of the whole membership over the objections of the minority, Vice-president Aaron Burr ruled that the majority was adequate. When the House took up the proposal, the same objection was raised, with an ingenious twist. It was pointed out that in the other instances in which the Constitution requires two-thirds majorities, in impeachment trials (Article I,. Section 3) and in ratifying treaties (Article II, Section 2), the language is “two thirds of the Members present” and “of the Senators present,” and some Representatives inferred that the different phraseology in Article V thereby meant two-thirds of the whole body. The House, however, overwhelmingly rejected the argument.

But another aspect of the matter clouds the issue. The numbers cited concerning the vote in the Senate mask some chicanery. One of the fifty non-southern senators was the newly elected John P. Stockton of New Jersey, an outspoken opponent of the Fourteenth Amendment, who took the oath of office and was formally seated when the Thirty-ninth Congress convened on December 5, 1865. Later, after informal polls revealed that only thirty-three senators favored it (one short of the necessary two-thirds) a motion was made not to seat Stockton. The motion not to seat was resorted to, even though he had already been seated, because Article I, Section 5, of the Constitution requires a two-thirds vote to expel a member, and that majority could not be mustered. Following a great deal of debate, a vote was taken and the motion not to seat failed twenty-two to twenty-one. Overnight, however, one member of the Senate was persuaded to change his vote. The next day the same motion passed. Stockton was thus unconstitutionally expelled, and only in that way did the thirty three votes for the Fourteenth Amendment become a two thirds majority.
Early Ratifications and Rejections

Even more vexing questions arise when we consider the process of ratification. Senator Charles Sumner of Massachusetts had, as early as 1862, formulated his “state suicide” theory, which held that the very act of seceding destroyed a state and dissolved its lawful government. In the House the Radical Pennsylvanian Thaddeus Stevens advanced the alternate theory that the eleven southern states were conquered provinces without any political rights. Either way, the ex-Confederates were governable exclusively by Congress under its express power to govern territories, and could have no voice in ratifying amendments. Accordingly, nineteen of the twenty-five loyal states would constitute the three-fourths majority necessary to ratify the Fourteenth Amendment, not twenty-seven of thirty-six states counting the South.

Congress might have had the right to act on either theory, but instead it rejected both. What is more, on June 16, 1866, when the proposed amendment was sent to the state governors for legislative ratification, it was sent to all thirty-six, a tacit endorsement of the position that the southern states were still full-fledged members of the Union. Against that ambiguous background, the contests over ratification got off to an erratic start. Five states ratified within the first three months. Ratification by Connecticut, New Hampshire, and New Jersey was unexceptional, though the vote in New Jersey was close and the state would later rescind its ratification but the action in Tennessee and Oregon was most irregular. Opponents of the amendment in the Tennessee House absented themselves, preventing a quorum. Two absent members were forcibly seized, a criminal court ordered them released by a writ of habeas corpus, the House ignored the writ, and the two were held in an anteroom. The speaker declared them absent and ruled that there was no quorum, but he was overruled by the members present. What was essentially a rump House then proceeded to vote for ratification.

Ratification in Oregon was equally irregular. Republicans in the state (who like most Republicans everywhere favored ratification) had a majority of one in the state’s House of Representatives, but two of their seats were challenged. The two were temporarily seated and provided a narrow margin for ratification. Later in the session, however, the disputed seats were awarded to Democrats on the ground that the Republicans had been illegally elected, whereupon the legislature rescinded its ratification.

Late in October Vermont added its ratification, but then the southern states began to be heard from-loudly and negatively. On October 27, 1866, Texas voted overwhelmingly not to ratify, the House by a seventy to five majority, the Senate by twenty-seven to one. Significantly, the legislature pledged its loyalty to the Constitution and promised to abide by the Fourteenth Amendment if it should be ratified by the necessary proportion of the other states. Georgia followed the same course two weeks later, its Senate unanimously, its House with only two votes in favor of ratification. In December more southern states rejected the amendment, and a portentous note was heard from a loyal state. The Florida House voted unanimously against ratification on December 1, the Senate unanimously against ratification two days later. In mid-month Arkansas, North Carolina, and South Carolina followed suit, in every instance by huge majorities. About the same time, friends of the amendment were handed another disappointment: Governor F. F. Low of California, though a Republican, refused to call a special session of the legislature to consider the amendment. California would subsequently reject it.

As Radicals in Congress began to discuss revisions of the amendment and draconian measures to secure its adoption, more rejections came during January of 1867. Virginia summarily voted against the amendment early in the month Alabama, after having debated it longer than any other state, also voted no and toward the end of the month Mississippi did likewise. Louisiana followed early in February. What was more, two loyal border states, Kentucky and Delaware, had joined the ranks of those rejecting the proposed amendment. A third loyal border state, Maryland, would do so in March.

In sum, as the last days of the Thirty-ninth Congress approached-it would expire on March 4, 1867-the Fourteenth Amendment appeared to be doomed. The admission of Nebraska to statehood on March 1 brought the number of states to thirty-seven, meaning that twenty-eight states would be required for ratification if the southern states were counted. But eleven had already voted no, and Maryland would make it twelve.

Changing the Rules

Yet a course of action remained whereby Congress could have brought about ratification at least marginally within the boundaries of the Constitution. Article I, Section 8, empowers Congress to determine whether a domestic insurrection is taking place, and under Article IV, Section 4, the United States guarantees each state a republican form of government and protects each against invasion or domestic violence-guarantees and protections that, according to the Supreme Court’s subsequent ruling, were primarily “legislative.” The proclamation by President Johnson on August 20, 1866 that the rebellion had ended in all states and that “peace, order, tranquility and civil authority now exist in and throughout the whole of the United States” could therefore have only “provisional” force until Congress acted. Moreover, though the Supreme Court would hold in Texas v. White (1869) that the Constitution “looks to an indestructible Union, composed of indestructible States,” it remained bound by its prior ruling in Luther v. Borden (1849) that matters of the legitimacy of state regimes arising under the republican government guarantee clause were “political questions” falling under the exclusive control of Congress and not subject to adjudication in the courts.

The inescapable conclusion from these considerations is that Congress would have faced no constitutional barriers had it embraced either Sumner’s state-suicide theory or Stevens’ conquered-province theory. Having done so, it could then have proclaimed that the Fourteenth Amendment would be officially ratified whenever twenty of the twenty-six “legitimate” or loyal states (including Nebraska) had approved. Subsequently, it could require the erstwhile southern states to approve the Constitution, including the new amendment, as a condition of admission to statehood, just as it could in admitting more conventional territories.

There is a complication in this scenario. Kentucky, Delaware, and Maryland, as we have seen, rejected the proposed amendment outright, and California did so later. Ohio, New Jersey, and Oregon rescinded their ratifications. If the rescissions were allowed, only nineteen states, not the requisite twenty, would have ratified. When introduced in Congress, however, the rescissions were rejected, despite the argument that a legislative ratification of an amendment was not a contract until it became part of the Constitution and could therefore be cancelled. Though the question is a sticky one, over which there is still disagreement, Congress was the final arbiter in the matter. The Supreme Court never ruled on the question directly, though in later cases, concerning different amendments, it declared that Congress necessarily had the last word.

Interestingly, it was the Radicals who proposed to follow the constitutional way of bringing about approval of the amendment-not because they had strong constitutional scruples, but because they wanted to keep the southern states out of the Union until further reforms could be imposed upon them, including suffrage for the freedmen and a general redistribution of all property. Instead, “moderate” and “conservative” Republicans prevailed, resulting in ratification of the Fourteenth Amendment by means that cannot be squared with either the Constitution or the Republicans’ own internal logic.

A Coercive Procedure

The congressional majority used the Reconstruction Act of March 2, 1867, passed over President Johnson’s veto just before the expiration of the Thirty-ninth Congress and slightly amended by the Fortieth Congress later the same month, to force the southern states to approve the amendment. The act, as amended, began with a declaration that “no legal state governments” existed in the ten “rebel” states that had refused to ratify. It divided the South into five military districts and replaced the existing governmental structures with martial law. The act required the “rebel” states to call elections, in which black males could vote, but whites who had participated in the rebellion or given aid and comfort to rebels could not. Thus the states would elect delegates to conventions that were to establish constitutions that included provisions for black suffrage. When the constitutions were ratified by a majority of the eligible voters and approved by Congress, when governments were organized under them, and when those governments ratified the Fourteenth Amendment, then-and only then-would Congress consider ending military rule, recognizing the state governments as legally existent and readmitting the states to representation in Congress.

The act flew in the face of the Constitution in a large variety of ways. First, it ran counter to the decision of the Supreme Court in Ex parte Milligan. Less than three months earlier, the Court had ruled that martial law could not constitutionally be imposed, in the absence of war or rebellion, in areas where the civilian courts were functioning. Next, in its peculiar holding that the states had continued to exist but were without legal government, the act entangled itself in contradictions. All the involved states except Mississippi, which had extensively amended its 1832 constitution, had drafted new constitutions under the auspices and with the approval of the federal government. Louisiana, for example, had adopted its constitution in 1864 under suggestions and directions from President Lincoln. And, tellingly, Congress had called upon the legislatures elected under those constitutions to ratify the Thirteenth Amendment in 1865. The votes of six of them-Alabama, Arkansas, Georgia, North Carolina, South Carolina, and Tennessee-were counted as being among the three-fourths majority. In other words, in 1865 Congress had recognized the legitimacy of the southern state governments for purposes of ratifying the Thirteenth Amendment, but, though nothing about those governments had changed by 1867, Congress denied their legitimacy when they voted to reject the Fourteenth Amendment.

Next, as President Johnson said in his veto message, the act deprived most white southerners of their political and civil rights on a wholesale basis, without due process of law, in violation of the Fifth Amendment. Moreover, it effectively served as “a bill of attainder against 9,000,000 people at once,” all of whom were excluded from a hearing through their representatives, on the basis of “an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence.” Further, the preclusion of southern representation in Congress by statute distorted one feature of the Constitution to annul two other features. Article I, Section 5, which declares that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own members,” clearly contemplates the judging of each member individually, through hearings and the taking of evidence. Yet by arbitrarily excluding members from specified states, Congressmen were not judging they were refusing to judge. By doing so, they deprived the designated states of their constitutional rights to representation as provided by Article I, Sections 2 and 3, and Article V.

Finally, the coercive quality of the act made it unconstitutional as well. Several sets of aims underlay the coerciveness, but Senator James Doolittle of Wisconsin certainly identified one of them when he said that “the people of the South have rejected the constitutional amendment,” and we will therefore “march upon them and force them to adopt it at the point of the bayonet” and rule them with military force “until they do adopt it.”

The Supreme Court Declines to Intervene

In response to the Reconstruction Act and its supplementary legislation, the South challenged them in the Supreme Court. The South had grounds for hoping that the Court would strike down the legislation, for it had faced up to Congress in the Milligan case and had recently overturned state and federal loyalty oaths but the hope turned out to be ill-founded. Mississippi led off by seeking an injunction against President Johnson and the district military commander, restraining them from executing and enforcing the acts. The Court declined on the ground that it lacked the power. Then Georgia brought a suit against Secretary of War Edwin Stanton, General Ulysses S. Grant, and the commander of the Third Military District, seeking a similar injunction on the ground that Congress had no power to annihilate a state government and thereby deprive its citizens of legal and political rights. The Court declined, holding that for a question to be judicially determined, “the rights in danger … must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court.” This language hinted broadly that if a suit were brought on an issue of property rights, the Court would hear it and rule on the constitutionality of the Reconstruction Acts. Such a case, Ex parte McCardle, was brought early in 1868, and the Court heard arguments in March, just before the impeachment trial of President Johnson got under way. In that highly charged atmosphere Congress passed, as a rider to a bill regarding appeals in customs and revenue cases, a measure removing the Court’s jurisdiction in the McCardle case. That, for practical purposes, killed all prospects of a judicial overthrow of the Reconstruction Acts.

Despairing of stopping the congressional juggernaut, ruled by military commanders who removed governors and judges at will, and swept by rumors that Congress intended to confiscate and redistribute their property (as some Radicals indeed did), the southern states began to capitulate. The ambience is captured in the journals of the House and Senate of Louisiana for the opening day of their sessions in late June 1868. The proceedings began with the reading of orders from General Grant, stressing the supremacy of the army over the “provisional” civil government, established in accordance with the Reconstruction Act. Armed federal soldiers milled around outside. They were still there when the puppet legislature voted to ratify the Fourteenth Amendment ten days later.

Southerners made some feeble attempts at resistance. In February Alabama whites had sought to prevent the adoption of a constitution that was being forced on them under the Reconstruction Act. Using a tactic contemplated in other states as well, they stayed away from the polls to prevent the new constitution from being approved by a majority of the registered voters. Of the 170,631 registered voters, fewer than 71,000 turned out and though 69,807 of these voted to ratify, that was less than a majority. Congress responded by promptly repealing the majority-of-the-voters requirement and allowing a bare majority of votes cast to suffice.
Ratification: The Essential Contradiction

We now come to the pivotal point upon which the constitutionality of the adoption of the Fourteenth Amendment turns. Let us assume that the amendment had been constitutionally proposed assume that the ratifications in Tennessee, Oregon, and West Virginia were proper and should have been counted and assume that the rescissions by New Jersey and Ohio were illegal and that their ratifications should be counted. Even so, as of April 1, 1868, the approval of six more states was necessary to validate the amendment. Let us further assume that the Reconstruction Act of March 2, 1867, was constitutional, and that ratification by the governments of the reconstituted southern states would count toward the necessary total.

Even if we make all these assumptions, it remains a fact that the southern state governments could have a voice in ratifying the amendment only if they were duly recognized as governments at the time they acted on the amendment. Congress had taken it upon itself-properly or improperly, it does not matter for present purposes-to be the arbiter of whether the governments were legitimate.

Arkansas was the first to act. It adopted its new state constitution on April 1, 1868. Two days later the legislature considered the Fourteenth Amendment, and by April 6 both houses had voted for ratification. But no resolution to recognize the loyalty of Arkansas’s government was proposed in Congress until May 7, and the resolution was not adopted until mid-June. Therefore the vote on the Fourteenth Amendment had been taken by a state which, under the congressional act of March 2, 1867, still had “no legal state government.”

Next came Florida, which in May 1868, approved a new constitution that had been drafted by a convention presided over by Colonel John Sprague of the United States Army, in full military uniform. The new legislature met in June and, “as dictated by the Acts of Congress as conditions precedent to admission,” ratified the amendment on June 9. But a problem arose when Congress debated whether to readmit the state: it turned out that the wording of the amendment as adopted by Florida differed in several particulars from the phraseology proposed by Congress. Some senators objected that Florida had therefore not properly adopted the amendment. After some desultory discussion, Senator Frederick Frelinghausen of New Jersey checked the ratifications of four states chosen at random-New York, Pennsylvania, Michigan, and Wisconsin-and reported that none had ratified the amendment exactly as proposed by Congress. “In the ratification by Wisconsin,” he said, “in one sentence, there were four or five errors,” some of them substantive. He added that if he examined the ratifications of all the states, he would probably “find like inaccuracies in each certificate.” Instead of ruling that no state had properly ratified, however, Congress decided that ratification in any form was acceptable and Florida was accordingly readmitted to statehood as a “legal government.”

At that point Congress changed the rules somewhat. Heretofore, ratification of the Fourteenth Amendment had been a necessary qualification for readmission to statehood, but not a sufficient one, which is to say that after the non-government of a state ratified, Congress would consider readmission. An act passed June 25, 1868, altered the procedure. The preamble of the act declared that several southern states had “framed constitutions of State government which are republican” article one enacted that each of them “shall be entitled and admitted to representation in Congress as a State of the Union” automatically when they ratified the amendment. Obviously, however, they were not states at the time they ratified, for if they were, they would already have been “entitled” to representation.

On those terms, North Carolina voted to ratify on July 2, South Carolina and Louisiana on July 9, and Alabama on July 16. According to the tally kept by Secretary of State William H. Seward, that made twenty-eight states, and on July 20 he proclaimed the amendment to be ratified. After some wrangling over who had the authority to determine, Congress confirmed its adoption.

Clearly, then, the Fourteenth Amendment was never constitutionally ratified, even if it had been constitutionally proposed. The question now becomes, so what? The critics of the 1950s and 1960s, cited earlier, called for the Supreme Court to rule that it was, not a part of the Constitution. To the certain objection that such a ruling would overturn a huge body of judicial precedent, they pointed out that the Court had, in Erie v. Tompkins (1938), overturned its earlier ruling in Swift v. Tyson (1842) and with it nearly a century of case law, and that to right a long-standing wrong was more important than precedent. Perhaps. Even so, though no one ever became rich by predicting what the Supreme Court would do from one generation to another, it seems safe to predict that the Fourteenth Amendment is here to stay, despite its origins. It behooves us, however, to be aware of the Fourteenth’s history, lest similar irregularities should surround another amendment in the future.

This article was originally published in the Georgia Journal of Southern Legal History in 1991.

14th Amendment

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Section 1.

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 the power to enforce, by appropriate legislation, the provisions of this article.

History of Law: The Fourteenth Amendment

The Civil War ended on May 9, 1865. Just more than three years later, on July 9, 1868, the 14th Amendment to the U.S. Constitution was passed. This amendment and the 13th and 15th amendments were a part of the Reconstruction Era of the United States, which focused on civil rights and rebuilding the war-torn nation. The 14th Amendment states that every person born or naturalized in America is a citizen of the country as well as their state of residence.

Some southern states began actively passing laws that restricted the rights of former slaves after the Civil War, and Congress responded with the 14th Amendment, designed to place limits on states' power as well as protect civil rights. To be readmitted to the Union after the Civil War, southern states had to ratify the 14th Amendment. Initially, Native Americans were not granted citizenship by this amendment because they were under the jurisdiction of tribal laws. It was not until 1924 that Congress passed the Indian Citizenship Act, which granted Native Americans citizenship rights as well.

The 14th Amendment has five sections. The first section introduces the citizenship law for all people born in the country or naturalized. This section also covers the limitations of state laws, which cannot supersede federal laws that govern citizens. States cannot deprive citizens of life, liberty, or property without due process of law. Due process of law means that legal proceedings have to be fair and that citizens need to be given notice and a chance to be heard before any rulings are made. When originally passed, the 14th Amendment was designed to grant citizenship rights to African-Americans, and it states that citizenship cannot be taken from anyone unless someone gives it up or commits perjury during the naturalization process.

In 1787, delegates of the Constitutional Convention had reached a compromise for determining the number of representatives each state would have in the U.S. House of Representatives. Called the three-fifths compromise, this agreement stated that every five slaves would be counted as three people when determining population for the number of representatives and taxes owed. Section 2 of the 14th Amendment removed this law from the Constitution, giving freed slaves full weight as citizens. The only adult male citizens who were denied the right to vote were those convicted of crimes.

Section 3 of the 14th Amendment focuses on rebellion, prohibiting anyone from being elected or appointed to a state or federal office after engaging in rebellion or treason. The houses of Congress can vote to override this if two-thirds of the votes are in favor. Section 4 serves to legitimize the public debt that Congress appropriates. This section was put in place to prevent the Confederacy's war and emancipation debts from impacting the reunited country.

The power of enforcement is outlined in Section 5 of the 14th Amendment. This clause gives Congress the power to pass appropriate laws to enforce all of the provisions of this amendment. Debate and controversy have been high regarding the scope of power given to Congress by this section. In 1879, the Supreme Court gave Congress significant authority. Since this time, however, decisions have been more conservative, giving Congress less authority in regulation. Congress does not have the power to regulate the private conduct of citizens, but it can regulate actions by state and local governments. Congress has the authority to stop or resolve rights violations that have a legal precedent, but the remedies have to be proportionate to the violations.



Section 1 of the amendment formally defines United States citizenship and also protects various civil rights from being abridged or denied by any state or state actor. Abridgment or denial of those civil rights by private persons is not addressed by this amendment the Supreme Court held in the Civil Rights Cases (1883) [1] that the amendment was limited to "state action" and, therefore, did not authorize the Congress to outlaw racial discrimination by private individuals or organizations (though Congress can sometimes reach such discrimination via other parts of the Constitution). U.S. Supreme Court Justice Joseph P. Bradley commented in the Civil Rights Cases that "individual invasion of individual rights is not the subject-matter of the [Fourteenth] Amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws." [2]

The Radical Republicans who advanced the Thirteenth Amendment hoped to ensure broad civil and human rights for the newly freed people—but its scope was disputed before it even went into effect. [3] The framers of the Fourteenth Amendment wanted these principles enshrined in the Constitution to protect the new Civil Rights Act from being declared unconstitutional by the Supreme Court and also to prevent a future Congress from altering it by a mere majority vote. [4] [5] This section was also in response to violence against black people within the Southern States. The Joint Committee on Reconstruction found that only a Constitutional amendment could protect black people's rights and welfare within those states. [6] The U.S. Supreme Court stated in Shelley v. Kraemer (1948) that the historical context leading to the Fourteenth Amendment's adoption must be taken into account, that this historical context reveals the Amendment's fundamental purpose and that the provisions of the Amendment are to be construed in light of this fundamental purpose. [7] In its decision the Court said:

The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. [. ] [T]he provisions of the Amendment are to be construed with this fundamental purpose in mind. [8]

Section 1 has been the most frequently litigated part of the amendment, [9] and this amendment in turn has been the most frequently litigated part of the Constitution. [10]

Citizenship Clause

The Citizenship Clause overruled the Supreme Court's Dred Scott decision that black people were not citizens and could not become citizens, nor enjoy the benefits of citizenship. [11] [12] [13] [14] Some members of Congress voted for the Fourteenth Amendment in order to eliminate doubts about the constitutionality of the Civil Rights Act of 1866, [15] or to ensure that no subsequent Congress could later repeal or alter the main provisions of that Act. [16] The Civil Rights Act of 1866 had granted citizenship to all people born in the United States if they were not subject to a foreign power, and this clause of the Fourteenth Amendment constitutionalized this rule. According to Garrett Epps, professor of constitutional law at the University of Baltimore, "Only one group is not 'subject to the jurisdiction' [of the United States] — accredited foreign diplomats and their families, who can be expelled by the federal government but not arrested or tried." [14] The U.S. Supreme Court stated in Elk v. Wilkins (1884) with respect to the purpose of the Citizenship Clause and the words "persons born or naturalized in the United States" and "subject to the jurisdiction thereof" in this context:

The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes (Scott v. Sandford, 19 How. 393), and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughterhouse Cases, 16 Wall. 36, 83 U. S. 73 Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 306. This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterward except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. [17]

There are varying interpretations of the original intent of Congress and of the ratifying states, based on statements made during the congressional debate over the amendment, as well as the customs and understandings prevalent at that time. [18] [19] Some of the major issues that have arisen about this clause are the extent to which it included Native Americans, its coverage of non-citizens legally present in the United States when they have a child, whether the clause allows revocation of citizenship, and whether the clause applies to illegal immigrants. [20]

Historian Eric Foner, who has explored the question of U.S. birthright citizenship to other countries, argues that:

Many things claimed as uniquely American—a devotion to individual freedom, for example, or social opportunity—exist in other countries. But birthright citizenship does make the United States (along with Canada) unique in the developed world. [. ] Birthright citizenship is one expression of the commitment to equality and the expansion of national consciousness that marked Reconstruction. [. ] Birthright citizenship is one legacy of the titanic struggle of the Reconstruction era to create a genuine democracy grounded in the principle of equality. [21]

Garrett Epps also stresses, like Eric Foner, the equality aspect of the Fourteenth Amendment:

Its centerpiece is the idea that citizenship in the United States is universal—that we are one nation, with one class of citizens, and that citizenship extends to everyone born here. Citizens have rights that neither the federal government nor any state can revoke at will even undocumented immigrants—"persons", in the language of the amendment—have rights to due process and equal protection of the law. [14]

Native Americans

During the original congressional debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause [22] —described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes Native Americans 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". [23] According to historian Glenn W. LaFantasie of Western Kentucky University, "A good number of his fellow senators supported his view of the citizenship clause." [22] Others also agreed that the children of ambassadors and foreign ministers were to be excluded. [24] [25]

Senator James Rood Doolittle of Wisconsin asserted that all Native Americans were subject to United States jurisdiction, so that the phrase "Indians not taxed" would be preferable, [26] but Senate Judiciary Committee Chairman Lyman Trumbull and Howard disputed this, arguing that the federal government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States. [27] [28] In Elk v. Wilkins (1884), [29] 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. [30] The issue was resolved with the passage of the Indian Citizenship Act of 1924, which granted full U.S. citizenship to indigenous peoples. [31]

Children born to foreign nationals

The Fourteenth Amendment provides that children born in the United States and subject to its jurisdiction become American citizens at birth. The principal framer John Armor Bingham said during the 39th United States Congress two years before its passing: [32]

I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen but, sir, I may be allowed to say further that I deny that the Congress of the United States ever had the power, or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States.

At the time of the amendment's passage, President Andrew Johnson and three senators, including Trumbull, the author of the Civil Rights Act, asserted that both the Civil Rights Act [33] [34] and the Fourteenth Amendment would confer citizenship to children born to foreign nationals in the United States. [35] [36] Senator Edgar Cowan of Pennsylvania had a decidedly different opinion. [37] Some scholars dispute whether the Citizenship Clause should apply to the children of unauthorized immigrants today, as "the problem . did not exist at the time". [38] In the 21st century, Congress has occasionally discussed passing a statute or a constitutional amendment to reduce the practice of "birth tourism", in which a foreign national gives birth in the United States to gain the child's citizenship. [39]

The clause's meaning with regard to a child of immigrants was tested in United States v. Wong Kim Ark (1898). [40] The Supreme Court held that under the Fourteenth Amendment, a man born within the United States to Chinese citizens who have a permanent domicile and residence in the United States and are carrying out business in the United States—and whose parents were not employed in a diplomatic or other official capacity by a foreign power—was a citizen of the United States. Subsequent decisions have applied the principle to the children of foreign nationals of non-Chinese descent. [41]

According to the Foreign Affairs Manual, which is published by the State Department, "Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the [Fourteenth] Amendment." [42]

Loss of citizenship

Loss of national citizenship is possible only under the following circumstances:

  • Fraud in the naturalization process. Technically, this is not a loss of citizenship but rather a voiding of the purported naturalization and a declaration that the immigrant never was a citizen of the United States. [43]
  • Affiliation with an "anti-American" organization (such as the Communist party or other totalitarian party, or a terrorist organization) within five years of naturalization. [44] The State Department views such affiliations as sufficient evidence that an applicant must have lied or concealed evidence in the naturalization process. [43]
  • Other-than-honorable discharge from the U.S. armed forces before five years of honorable service, if honorable service was the basis for the naturalization. [43]
  • 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. [45]

For much of the country's history, voluntary acquisition or exercise of a foreign citizenship was considered sufficient cause for revocation of national citizenship. [46] 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 (1967), [47] as well as Vance v. Terrazas (1980), [48] holding that the Citizenship Clause of the Fourteenth Amendment barred the Congress from revoking citizenship. However, it has been argued that Congress can revoke citizenship that it has previously granted to a person not born in the United States. [49]

Privileges or Immunities Clause

The Privileges or Immunities Clause, which protects the privileges and immunities of national citizenship from interference by the states, was patterned after the Privileges and Immunities Clause of Article IV, which protects the privileges and immunities of state citizenship from interference by other states. [50] In the Slaughter-House Cases (1873), [50] the Supreme Court concluded that the Constitution recognized two separate types of citizenship—"national citizenship" and "state citizenship"—and the Court held that the Privileges or Immunities Clause prohibits states from interfering only with privileges and immunities possessed by virtue of national citizenship. [50] [51] The Court concluded that the privileges and immunities of national citizenship included only those rights that "owe their existence to the Federal government, its National character, its Constitution, or its laws". [50] The Court recognized few such rights, including access to seaports and navigable waterways, the right to run for federal office, the protection of the federal government while on the high seas or in the jurisdiction of a foreign country, the right to travel to the seat of government, the right to peaceably assemble and petition the government, the privilege of the writ of habeas corpus, and the right to participate in the government's administration. [50] [51] This decision has not been overruled and has been specifically reaffirmed several times. [52] Largely as a result of the narrowness of the Slaughter-House opinion, this clause subsequently lay dormant for well over a century. [53]

In Saenz v. Roe (1999), [54] the Court ruled that a component of the "right to travel" is protected by the Privileges or Immunities Clause:

Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause "is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State". (emphasis added)

Justice Miller actually wrote in the Slaughter-House Cases that the right to become a citizen of a state (by residing in that state) "is conferred by the very article under consideration" (emphasis added), rather than by the "clause" under consideration. [50] [55]

In McDonald v. Chicago (2010), Justice Clarence Thomas, while concurring with the majority in incorporating the Second Amendment against the states, declared that he reached this conclusion through the Privileges or Immunities Clause instead of the Due Process Clause. Randy Barnett has referred to Justice Thomas's concurring opinion as a "complete restoration" of the Privileges or Immunities Clause. [56]

In Timbs v. Indiana (2019), Justice Thomas and Justice Neil Gorsuch, in separate concurring opinions, declared the Excessive Fines Clause of the Eighth Amendment was incorporated against the states through the Privileges or Immunities Clause instead of the Due Process Clause. [57]

Due Process Clause

General aspects

Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. [58] [59] [60] The Supreme Court has described due process consequently as “the protection of the individual against arbitrary action.” [61] In Hurtado v. California (1884), the U.S. Supreme Court said: [62]

Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

The Due Process Clause has been used to strike down legislation. The Fifth and Fourteenth Amendments for example do not prohibit governmental regulation for the public welfare. Instead, they only direct the process by which such regulation occurs. As the Court has held before, such due process "demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained." [63] Despite the foregoing citation the Due Process Clause enables the Supreme Court to exercise its power of judicial review, "because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure." [64] Justice Louis Brandeis observed in his concurrence opinion in Whitney v. California, 274 U.S. 357, 373 (1927), that "[d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States." [65] The Due Process Clause of the Fourteenth Amendment applies only against the states, but it is otherwise textually identical to the Due Process Clause of the Fifth Amendment, which applies against the federal government both clauses have been interpreted to encompass identical doctrines of procedural due process and substantive due process. [66] Procedural due process is the guarantee of a fair legal process when the government tries to interfere with a person's protected interests in life, liberty, or property, and substantive due process is the guarantee that the fundamental rights of citizens will not be encroached on by government. [67] Furthermore, as observed by Justice John M. Harlan II in his dissenting opinion in Poe v. Ullman, 367 U.S. 497, 541 (1961), quoting Hurtado v. California, 110 U.S. 516, 532 (1884), "the guaranties of due process, though having their roots in Magna Carta's 'per legem terrae' and considered as procedural safeguards 'against executive usurpation and tyranny', have in this country 'become bulwarks also against arbitrary legislation'." [68] The Due Process Clause of the Fourteenth Amendment also incorporates most of the provisions in the Bill of Rights, which were originally applied against only the federal government, and applies them against the states. [69] The Due Process clause applies regardless whether one is a citizen of the United States of America or not. [14]

Specific aspects

The Supreme Court of the United States interprets the clauses broadly, concluding that these clauses provide three protections: procedural due process (in civil and criminal proceedings) substantive due process and as the vehicle for the incorporation of the Bill of Rights. These aspects will be discussed in the sections below.

Substantive due process

Beginning with Allgeyer v. Louisiana (1897), [70] the U.S. Supreme Court interpreted the Due Process Clause as providing substantive protection to private contracts, thus prohibiting a variety of social and economic regulation this principle was referred to as "freedom of contract". [71] A unanimous court held with respect to the noun "liberty" mentioned in the Fourteenth Amendment's Due Process Clause:

The 'liberty' mentioned in [the Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. [72]

Relying on the principle of "freedom of contract" the Court struck down a law decreeing maximum hours for workers in a bakery in Lochner v. New York (1905) [73] and struck down a minimum wage law in Adkins v. Children's Hospital (1923). [74] In Meyer v. Nebraska (1923), [75] the Court stated that the "liberty" protected by the Due Process Clause

[w]ithout doubt . denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. [76]

However, the Court did uphold some economic regulation, such as state Prohibition laws (Mugler v. Kansas, 1887), [77] laws declaring maximum hours for mine workers (Holden v. Hardy, 1898), [78] laws declaring maximum hours for female workers (Muller v. Oregon, 1908), [79] and President Woodrow Wilson's intervention in a railroad strike (Wilson v. New, 1917), [80] as well as federal laws regulating narcotics (United States v. Doremus, 1919). [81] The Court repudiated, but did not explicitly overrule, the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937). [82] In its decision the Court stated:

The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. This essential limitation of liberty in general governs freedom of contract in particular. [83]

The Court has interpreted the term "liberty" in the Due Process Clauses of the Fifth and Fourteenth Amendments in Bolling v. Sharpe (1954) broadly:

Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. [84] [85]

In Poe v. Ullman (1961), dissenting judge John Marshall Harlan II adopted a broad view of the "liberty" protected by the Fourteenth Amendment Due Process clause:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property the freedom of speech, press, and religion the right to keep and bear arms the freedom from unreasonable searches and seizures and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. [86]

Although the "freedom of contract" described above has fallen into disfavor, by the 1960s, the Court had extended its interpretation of substantive due process to include other rights and freedoms that are not enumerated in the Constitution but that, according to the Court, extend or derive from existing rights. [71] For example, the Due Process Clause is also the foundation of a constitutional right to privacy. The Court first ruled that privacy was protected by the Constitution in Griswold v. Connecticut (1965), which overturned a Connecticut law criminalizing birth control. [87] While Justice William O. Douglas wrote for the majority that the right to privacy was found in the "penumbras" of various provisions in the Bill of Rights, Justices Arthur Goldberg and John Marshall Harlan II wrote in concurring opinions that the "liberty" protected by the Due Process Clause included individual privacy. [88] The above mentioned broad view of liberty embraced by dissenting judge John Marshall Harlan II Poe v. Ullman (1961) was adopted by the Supreme Court in Griswold v. Connecticut. [89]

The right to privacy was the basis for Roe v. Wade (1973), [90] in which the Court invalidated a Texas law forbidding abortion except to save the mother's life. Like Goldberg's and Harlan's concurring opinions in Griswold, the majority opinion authored by Justice Harry Blackmun located the right to privacy in the Due Process Clause's protection of liberty. The decision disallowed many state and federal abortion restrictions, and it became one of the most controversial in the Court's history. [91] In Planned Parenthood v. Casey (1992), [92] the Court decided that "the essential holding of Roe v. Wade should be retained and once again reaffirmed". [93]

In Lawrence v. Texas (2003), [94] the Court found that a Texas law against same-sex sexual intercourse violated the right to privacy. [95] In Obergefell v. Hodges (2015), the Court ruled that the fundamental right to marriage included same-sex couples being able to marry. [96]

Procedural due process

When the government seeks to burden a person's protected liberty interest or property interest, the Supreme Court has held that procedural due process requires that, at a minimum, the government provide the person notice, an opportunity to be heard at an oral hearing, and a decision by a neutral decision-maker. For example, such process is due when a government agency seeks to terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits. [97] [98] The Court has also ruled that the Due Process Clause requires judges to recuse themselves in cases where the judge has a conflict of interest. For example, in Caperton v. A.T. Massey Coal Co. (2009), [99] 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 campaign for election to that court. [100]


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. In Barron v. Baltimore (1833), [101] the Supreme Court unanimously ruled that the Bill of Rights restrained only the federal government, not the states. [102] However, the Supreme Court has subsequently held that most provisions of the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment under a doctrine called "incorporation". [69]

Whether incorporation was intended by the amendment's framers, such as John Bingham, has been debated by legal historians. [103] According to legal scholar 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 same individual rights as the federal government all these rights were likely understood as falling within the "privileges or immunities" safeguarded by the amendment. [104]

By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states. [105] The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Second, Fourth, Fifth (except for its Grand Jury Clause) and Sixth Amendments, along with the Excessive Fines Clause and Cruel and Unusual Punishment Clause of the Eighth Amendment. [106] 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. [107] The Seventh Amendment right to jury trial in civil cases has been held not to be applicable to the states, [106] [108] but the amendment's Re-Examination Clause does apply to "a case tried before a jury in a state court and brought to the Supreme Court on appeal". [109]

The Excessive Fines Clause of the Eighth Amendment became the last right to be incorporated when the Supreme Court ruled in Timbs v. Indiana (2019) that right to apply to the states. [110]

Equal Protection Clause

The Equal Protection Clause was created largely in response to the lack of equal protection provided by law in states with Black Codes. Under Black Codes, blacks could not sue, give evidence, or be witnesses. They also were punished more harshly than whites. [111] [112] The Supreme Court in Strauder v. West Virginia said the Fourteenth Amendment not only gave citizenship and the privileges of citizenship to persons of color, it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation. [113] In 1880, the Supreme Court stated in Strauder v. West Virginia specifically that the Equal Protection Clause was

designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.

The Equal Protection Clause applies to citizens and non-citizens alike. [14] The clause mandates that individuals in similar situations be treated equally by the law. [114] [115] [116] The purpose of the clause is not only to guarantee equality both in laws for security of person as well as in proceedings, but also to insure the "equal right to the laws of due process and impartially administered before the courts of justice". [112] Although the text of the Fourteenth Amendment applies the Equal Protection Clause only against the states, the Supreme Court, since Bolling v. Sharpe (1954), has applied the clause against the federal government through the Due Process Clause of the Fifth Amendment under a doctrine called "reverse incorporation". [117] [118]

In Yick Wo v. Hopkins (1886), the Supreme Court has clarified that the meaning of "person" and "within its jurisdiction" in the Equal Protection Clause would not be limited to discrimination against African Americans, but would extend to other races, colors, and nationalities such as (in this case) legal aliens in the United States who are Chinese citizens: [119] [120]

These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws.

Persons "within its jurisdiction" are entitled to equal protection from a state. Largely because the Privileges and Immunities Clause of Article IV has from the beginning guaranteed the privileges and immunities of citizens in the several states, the Supreme Court has rarely construed the phrase "within its jurisdiction" in relation to natural persons. [120] In Plyler v. Doe (1982), where the Court held that aliens illegally present in a state are within its jurisdiction and may thus raise equal protection claims [120] [121] the Court explicated the meaning of the phrase "within its jurisdiction" as follows: "[U]se of the phrase 'within its jurisdiction' confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory." [121] The Court reached this understanding among other things from Senator Howard, a member of the Joint Committee of Fifteen, and the floor manager of the amendment in the Senate. Senator Howard was explicit about the broad objectives of the Fourteenth Amendment and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a state: [121]

The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all person who may happen to be within their jurisdiction. [emphasis added by the U.S. Supreme Court] [122]

The relationship between the Fifth and Fourteenth Amendments was addressed by Justice Field in Wong Wing v. United States (1896). [123] He observed with respect to the phrase "within its jurisdiction": "The term 'person', used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws. . The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar—in face of the great constitutional amendment which declares that no State shall deny to any person within its jurisdiction the equal protection of the laws." [124]

The Supreme Court also decided whether foreign corporations are also within the jurisdiction of a state, ruling that a foreign corporation which sued in a state court in which it was not licensed to do business to recover possession of property wrongfully taken from it in another state was within the jurisdiction and could not be subjected to unequal burdens in the maintenance of the suit. [120] When a state has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws but not necessarily to identical treatment with domestic corporations. [120]

In Santa Clara County v. Southern Pacific Railroad (1886), the court reporter included a statement by Chief Justice Morrison Waite in the decision's headnote:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does. [125]

This dictum, which established that corporations enjoyed personhood under the Equal Protection Clause, was repeatedly reaffirmed by later courts. [125] It remained the predominant view throughout the twentieth century, though it was challenged in dissents by justices such as Hugo Black and William O. Douglas. [126] Between 1890 and 1910, Fourteenth Amendment cases involving corporations vastly outnumbered those involving the rights of blacks, 288 to 19. [127]

In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia, 1880) [128] or discriminating against Chinese Americans in the regulation of laundry businesses (Yick Wo v. Hopkins, 1886), [119] as violations of the Equal Protection Clause. However, in Plessy v. Ferguson (1896), [129] the Supreme Court held that the states could impose racial segregation so long as they provided similar facilities—the formation of the "separate but equal" doctrine. [130]

The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908), [131] holding that the states could force private actors to discriminate by prohibiting colleges from having both black and white students. By the early 20th 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". [132]

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. [133] In Brown the Court ruled that even if segregated black and white schools were of equal quality in facilities and teachers, segregation was inherently harmful to black students and so was unconstitutional. 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. [134] This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation. [135] In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court ruled that race could not be the determinative factor in determining to which public schools parents may transfer their children. [136] [137]

In Plyler v. Doe (1982) the Supreme Court struck down a Texas statute denying free public education to illegal immigrants as a violation of the Equal Protection Clause of the Fourteenth Amendment because discrimination on the basis of illegal immigration status did not further a substantial state interest. The Court reasoned that illegal aliens and their children, though not citizens of the United States or Texas, are people "in any ordinary sense of the term" and, therefore, are afforded Fourteenth Amendment protections. [121] [138]

In Hernandez v. Texas (1954), 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. [139] In the half-century following Brown, the Court 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) [140] Levy v. Louisiana (1968) [141] ). [142]

The Supreme Court ruled in Regents of the University of California v. Bakke (1978) [143] that affirmative action in the form of racial quotas in public university admissions was a violation of Title VI of the Civil Rights Act of 1964 however, race could be used as one of several factors without violating of the Equal Protection Clause or Title VI. [144] In Gratz v. Bollinger (2003) [145] and Grutter v. Bollinger (2003), [146] the Court considered two race-conscious admissions systems at the University of Michigan. The university claimed that its goal in its admissions systems was to achieve racial diversity. [147] In Gratz, the Court struck down a points-based undergraduate admissions system that added points for minority status, finding that its rigidity violated the Equal Protection Clause in Grutter, the Court upheld a race-conscious admissions process for the university's law school that used race as one of many factors to determine admission. [148] In Fisher v. University of Texas (2013), the Court ruled that before race can be used in a public university's admission policy, there must be no workable race-neutral alternative. [149] [150] In Schuette v. Coalition to Defend Affirmative Action (2014), the Court upheld the constitutionality of a state constitutional prohibition on the state or local use of affirmative action. [151] [152]

Reed v. Reed (1971), [153] which struck down an Idaho probate law favoring men, was the first decision in which the Court ruled that arbitrary gender discrimination violated the Equal Protection Clause. [154] In Craig v. Boren (1976), [155] the Court ruled that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review. [156] Reed and Craig later served as precedents to strike down a number of state laws discriminating by gender. [154]

Since Wesberry v. Sanders (1964) [157] and Reynolds v. Sims (1964), [158] the Supreme Court has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats according to "one man, one vote". [159] The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993), [160] the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic underrepresentation in the state's congressional delegations. [161]

The Equal Protection Clause served as the basis for the decision in Bush v. Gore (2000), [162] in which the Court ruled that no constitutionally valid recount of Florida's votes in the 2000 presidential election could be held within the needed deadline the decision effectively secured Bush's victory in the disputed election. [163] In League of United Latin American Citizens v. Perry (2006), [164] the Court ruled that House Majority Leader Tom DeLay's Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause. [165]

State actor doctrine

Before United States v. Cruikshank, 92 U.S. 542 (1876) was decided by United States Supreme Court, the case was decided as a circuit case (Federal Cases No. 14897). Presiding of this circuit case was judge Joseph P. Bradley who wrote at page 710 of Federal Cases No. 14897 regarding the Fourteenth Amendment to the United States Constitution: [166]

It is a guarantee of protection against the acts of the state government itself. It is a guarantee against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guarantee against the commission of individual offenses, and the power of Congress, whether express or implied, to legislate for the enforcement of such a guarantee does not extend to the passage of laws for the suppression of crime within the states. The enforcement of the guarantee does not require or authorize Congress to perform 'the duty that the guarantee itself supposes it to be the duty of the state to perform, and which it requires the state to perform'.

The above quote was quoted by United Supreme Court in United States v. Harris, 106 U.S. 629 (1883) and supplemented by a quote from the majority opinion in United States v. Cruikshank, 92 U.S. 542 (1876) as written by Chief Justice Morrison Waite: [167] [168]

The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws, but it adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the National Government is limited to the enforcement of this guaranty.

Individual liberties guaranteed by the United States Constitution, other than the Thirteenth Amendment's ban on slavery, protect not against actions by private persons or entities, but only against actions by government officials. [169] Regarding the Fourteenth Amendment, the Supreme Court ruled in Shelley v. Kraemer (1948): [170] "[T]he action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." The court added in Civil Rights Cases (1883): [1] "It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws."

Vindication of federal constitutional rights are limited to those situations where there is "state action" meaning action of government officials who are exercising their governmental power. [169] In Ex parte Virginia (1880), [171] the Supreme Court found that the prohibitions of the Fourteenth Amendment "have reference to actions of the political body denominated by a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State." [172]

There are however instances where people are the victims of civil-rights violations that occur in circumstances involving both government officials and private actors. [169] In the 1960s, the United States Supreme Court adopted an expansive view of state action opening the door to wide-ranging civil-rights litigation against private actors when they act as state actors [169] (i.e., acts done or otherwise "sanctioned in some way" by the state). The Court found that the state action doctrine is equally applicable to denials of privileges or immunities, due process, and equal protection of the laws. [120]

The critical factor in determining the existence of state action is not governmental involvement with private persons or private corporations, but "the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself". [172] "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." [173]

The Supreme Court asserted that plaintiffs must establish not only that a private party "acted under color of the challenged statute, but also that its actions are properly attributable to the State". [174] "And the actions are to be attributable to the State apparently only if the State compelled the actions and not if the State merely established the process through statute or regulation under which the private party acted." [120]

The rules developed by the Supreme Court for business regulation are that (1) the "mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment", [a] and (2) "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State". [b]

Under Article I, Section 2, Clause 3, the basis of representation of each state in the House of Representatives was determined by adding three-fifths of each state's slave population to its free population. Because slavery (except as punishment for crime) had been abolished by the Thirteenth Amendment, the freed slaves would henceforth be given full weight for purposes of apportionment. [175] This situation was a concern to the Republican leadership of Congress, who worried that it would increase the political power of the former slave states, even as they continued to deny freed slaves the right to vote. [175]

Two solutions were considered:

  • reduce the Congressional representation of the former slave states (for example, by basing representation on the number of legal voters rather than the number of inhabitants)
  • guarantee freed slaves the right to vote

On January 31, 1866, the House of Representatives voted in favor of a proposed constitutional amendment that would reduce a state's representation in the House in proportion to which that state used "race or color" as a basis to deny the right to vote in that state. [175] The amendment failed in the Senate, partly because radical Republicans foresaw that states would be able to use ostensibly race-neutral criteria, such as educational and property qualifications, to disenfranchise the freed slaves without negative consequence. So the amendment was changed to penalize states in which the vote was denied to male citizens over twenty-one for any reason other than participation in crime. Later, the Fifteenth Amendment was adopted to guarantee the right to vote could not be denied based on race or color.

The effect of Section 2 was twofold:

  • Although the three-fifths clause was not formally repealed, it was effectively removed from the Constitution. In the words of the Supreme Court in Elk v. Wilkins, Section 2 "abrogated so much of the corresponding clause of the original Constitution as counted only three-fifths of such persons [slaves]".
  • It was intended to penalize, by means of reduced Congressional representation, states that withheld the franchise from adult male citizens for any reason other than participation in crime. This, it was hoped, would induce the former slave states to recognize the political rights of the former slaves, without directly forcing them to do so—something that it was thought the states would not accept. [175]


The first reapportionment after the enactment of the Fourteenth Amendment occurred in 1873, based on the 1870 census. Congress appears to have attempted to enforce the provisions of Section 2, but was unable to identify enough disenfranchised voters to make a difference to any state's representation. [175] In the implementing statute, Congress added a provision stating that

should any state, after the passage of this Act, deny or abridge the right of any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendments to the Constitution, article fourteen, section two, except for participation in rebellion or other crime, the number of Representatives apportioned in this act to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State. [176]

A nearly identical provision remains in federal law to this day. [177]

Despite this legislation, in subsequent reapportionments, no change has ever been made to any state's Congressional representation on the basis of the Amendment. [175] Bonfield, writing in 1960, suggested that "[t]he hot political nature of such proposals has doomed them to failure". [175] Aided by this lack of enforcement, southern states continued to use pretexts to prevent many blacks from voting until the passage of the Voting Rights Act of 1965. [178]

In the Fourth Circuit case of Saunders v Wilkins (1945), [179] Saunders claimed that Virginia should have its Congressional representation reduced because of its use of a poll tax and other voting restrictions. The plaintiff sued for the right to run for Congress at large in the state, rather than in one of its designated Congressional districts. The lawsuit was dismissed as a political question. [175]

Influence on voting rights

Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment, [180] but the Supreme Court acknowledged Section 2 in later decisions.

In Minor v. Happersett (1875), the Supreme Court cited Section 2 as supporting its conclusion that the right to vote was not among the "privileges and immunities of citizenship" protected by Section 1. [181] Women would not achieve equal voting rights throughout the United States until the adoption of Nineteenth Amendment in 1920.

In Richardson v. Ramirez (1974), the Court cited Section 2 as justifying the states disenfranchising felons. [182]

In Hunter v. Underwood (1985), a case involving disenfranchising black misdemeanants, the Supreme Court concluded that the Tenth Amendment cannot save legislation prohibited by the subsequently enacted Fourteenth Amendment. More specifically the Court concluded that laws passed with a discriminatory purpose are not excepted from the operation of the Equal Protection Clause by the "other crime" provision of Section 2. The Court held that Section 2 "was not designed to permit the purposeful racial discrimination [. ] which otherwise violates [Section] 1 of the Fourteenth Amendment." [183]


Abolitionist leaders criticized the amendment's failure to specifically prohibit the states from denying people the right to vote on the basis of race. [184]

Section 2 protects the right to vote only of adult males, not adult females, making it the only provision of the Constitution to explicitly discriminate on the basis of sex. [5] Section 2 was condemned by women's suffragists, such as Elizabeth Cady Stanton and Susan B. Anthony, who had long seen their cause as linked to that of black rights. The separation of black civil rights from women's civil rights split the two movements for decades. [185]

Soon after losing the Civil War in 1865, states that had been part of the Confederacy began to send "unrepentant" former Confederates (such as the Confederacy's former vice president, Alexander H. Stephens) to Washington as Senators and Representatives. Congress refused to seat them and drafted Section 3 to perpetuate, as a constitutional imperative, that any who violate their oath to the Constitution are to be barred from public office. [186] Section 3 disqualifies from federal or state office anyone who, having taken an oath as a public official to support the Constitution, subsequently engages in "insurrection or rebellion" against United States or gives "aid and comfort" to its enemies. [187] [188] Southerners strongly opposed it, arguing it would hurt reunification of the country. [187]

Section 3 does not specify how it is to be invoked, but by precedent disqualification is imposed by simple majorities of the House and Senate (separately), and can be removed by a supermajority of each. [189] [190]

After the amendment's adoption in 1868, disqualification was seldom enforced in the South. [186] [187] At the urging of President Ulysses S. Grant, in 1872 Congress passed the Amnesty Act, which removed the disqualification from all but the most senior Confederates. [189] In 1898, as a "gesture of national unity" [187] during the Spanish–American War, Congress passed another law broadening the amnesty. [191] [192] Congress posthumously lifted the disqualification from Confederate general Robert E. Lee in 1975, [193] and Confederate president Jefferson Davis in 1978. [187] [188] [194] These waivers do not bar Section 3 from being used today. [189]

Since Reconstruction, Section 3 has been invoked only once: it was used to block Socialist Party of America member Victor L. Berger of Wisconsin – convicted of violating the Espionage Act for opposing US entry into World War I – from assuming his seat in the House of Representatives in 1919 and 1920. [187] [190] [195] Berger's conviction was overturned by the Supreme Court in Berger v. United States (1921), after which he was elected to three successive terms in the 1920s he was seated for all three terms. [196]

Storming of United States Capitol

On January 10, 2021, Nancy Pelosi, the Speaker of the House, formally requested Representatives' input as to whether to pursue Section 3 disqualification of former US president Donald Trump because of his role in the storming of the United States Capitol on January 6. [188] [186] Unlike impeachment, which requires a supermajority to convict, disqualification under Section 3 would only require a simple majority of each house of Congress. [187] [189]

The Section 3 disqualification could be imposed by Congress passing a law or a nonbinding resolution stating that the January 6 riot was an insurrection, and that anyone who swore to uphold the Constitution and who incited or participated in the riot is disqualified under Section 3. [186] Some legal experts believe a court would then be required to make a final determination that Trump was disqualified under Section 3. [187] A state may also make a determination that Trump is disqualified under Section 3 from appearing on that state's ballot. [188] Trump could appeal in court any disqualification by Congress or by a state. [190] In addition to state or federal legislative action, a court action could be brought against Trump seeking his disqualification under Section 3. [189]

On January 11, 2021, Representative Cori Bush (Democrat from Missouri) and 47 cosponsors introduced a resolution calling for expulsion, under Section 3, of members of Congress who voted against certifying the results of the 2020 US presidential election or incited the January 6 riot. Those named in the resolution included Republican Representatives Mo Brooks of Alabama and Louie Gohmert of Texas, who took part in the rally that preceded the riot, and Republican Senators Josh Hawley of Missouri and Ted Cruz of Texas, who objected to counting electoral votes to certify the 2020 presidential election result. [188] [186]

Section 4 confirmed the legitimacy of all public debt appropriated 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, during the Civil War several British and French banks had lent large sums of money to the Confederacy to support its war against the Union. [197] In Perry v. United States (1935), the Supreme Court ruled that under Section 4 voiding a United States bond "went beyond the congressional power". [198]

The debt-ceiling crises of 2011 and 2013 raised the question of what is the President's authority under Section 4. [199] [200] Some, such as legal scholar Garrett Epps, fiscal expert Bruce Bartlett and Treasury Secretary Timothy Geithner, have argued that a debt ceiling may be unconstitutional and therefore void as long as it interferes with the duty of the government to pay interest on outstanding bonds and to make payments owed to pensioners (that is, Social Security and Railroad Retirement Act recipients). [201] [202] Legal analyst Jeffrey Rosen has argued that Section 4 gives the President unilateral authority to raise or ignore the national debt ceiling, and that if challenged the Supreme Court would likely rule in favor of expanded executive power or dismiss the case altogether for lack of standing. [203] Erwin Chemerinsky, professor and dean at University of California, Irvine School of Law, has argued that not even in a "dire financial emergency" could the President raise the debt ceiling as "there is no reasonable way to interpret the Constitution that [allows him to do so]". [204] Jack Balkin, Knight Professor of Constitutional Law at Yale University, opined that like Congress the President is bound by the Fourteenth Amendment, for otherwise, he could violate any part of the amendment at will. Because the President must obey the Section 4 requirement not to put the validity of the public debt into question, Balkin argued that President Obama would have been obliged "to prioritize incoming revenues to pay the public debt, interest on government bonds and any other 'vested' obligations. What falls into the latter category is not entirely clear, but a large number of other government obligations—and certainly payments for future services—would not count and would have to be sacrificed. This might include, for example, Social Security payments." [200]

The opinion of the Supreme Court in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) stated with a view to the Reconstruction Amendments and about the Fourteenth Amendment's Section 5 Enforcement Clause in light of said Amendent's Equal Protection Clause: [206]

In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation.

Section 5, also known as the Enforcement Clause of the Fourteenth Amendment, enables Congress to pass laws enforcing the amendment's other provisions. [207] [208] In the Civil Rights Cases (1883), [1] the Supreme Court interpreted Section 5 narrowly, stating that "the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation". In other words, the amendment authorizes Congress to pass laws only to combat violations of the rights protected in other sections. [209]

In Katzenbach v. Morgan (1966), [210] the Court upheld Section 4(e) of the Voting Rights Act of 1965, which prohibits certain forms of literacy requirements as a condition to vote, as a valid exercise of Congressional power under Section 5 to enforce the Equal Protection Clause. The Court ruled that Section 5 enabled Congress to act both remedially and prophylactically to protect the rights guaranteed by the amendment. [211] However, in City of Boerne v. Flores (1997), [212] the Court narrowed Congress's enforcement power, holding that Congress may not enact legislation under Section 5 that substantively defines or interprets Fourteenth Amendment rights. [207] The Court ruled that legislation is valid under Section 5 only if there is a "congruence and proportionality" between the injury to a person's Fourteenth Amendment right and the means Congress adopted to prevent or remedy that injury. [213]


Privileges or immunities

  • 1873: Slaughter-House Cases
  • 1875: Minor v. Happersett
  • 1908: Twining v. New Jersey
  • 1920: United States v. Wheeler
  • 1948: Oyama v. California
  • 1999: Saenz v. Roe


  • 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
  • 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
  • 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
  • 2019: Timbs v. Indiana

Substantive due process

  • 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
  • 1934: Nebbia v. New York
  • 1937: West Coast Hotel Co. v. Parrish
  • 1965: Griswold v. Connecticut
  • 1973: Roe v. Wade
  • 1992: Planned Parenthood v. Casey
  • 1996: BMW of North America, Inc. v. Gore
  • 1997: Washington v. Glucksberg
  • 2003: State Farm v. Campbell
  • 2003: Lawrence v. Texas
  • 2015: Obergefell v. Hodges

Equal protection

  • 1880: Strauder v. West Virginia
  • 1886: Yick Wo v. Hopkins
  • 1886: Santa Clara County v. Southern Pacific Railroad
  • 1896: Plessy v. Ferguson
  • 1908: Berea College v. Kentucky
  • 1917: Buchanan v. Warley
  • 1942: Skinner v. Oklahoma
  • 1944: Korematsu v. United States
  • 1948: Shelley v. Kraemer
  • 1954: Hernandez v. Texas
  • 1954: Brown v. Board of Education
  • 1954: Bolling v. Sharpe
  • 1962: Baker v. Carr
  • 1967: Loving v. Virginia
  • 1971: Reed v. Reed
  • 1971: Palmer v. Thompson
  • 1972: Eisenstadt v. Baird
  • 1973: San Antonio Independent School District v. Rodriguez
  • 1976: Examining Board v. Flores de Otero
  • 1978: Regents of the University of California v. Bakke
  • 1982: Plyler v. Doe
  • 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

Felon disenfranchisement

Power of enforcement

  • 1883: Civil Rights Cases
  • 1966: Katzenbach v. Morgan
  • 1976: Fitzpatrick v. Bitzer
  • 1997: City of Boerne v. Flores
  • 1999: Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank
  • 2000: United States v. Morrison
  • 2000: Kimel v. Florida Board of Regents
  • 2001: Board of Trustees of the University of Alabama v. Garrett
  • 2003: Nevada Department of Human Resources v. Hibbs
  • 2004: Tennessee v. Lane
  • 2013: Shelby County v. Holder

Proposal by Congress

In the final years of the American Civil War and the Reconstruction Era that followed, Congress repeatedly debated the rights of black former slaves freed by the 1863 Emancipation Proclamation and the 1865 Thirteenth Amendment, the latter of which had formally abolished slavery. Following the passage of the Thirteenth Amendment by Congress, however, Republicans grew concerned over the increase it would create in the congressional representation of the Democratic-dominated Southern States. Because the full population of freed slaves would now be counted for determining congressional representation, rather than the three-fifths previously mandated by the Three-Fifths Compromise, the Southern States would dramatically increase their power in the population-based House of Representatives, regardless of whether the former slaves were allowed to vote. [214] [215] Republicans began looking for a way to offset this advantage, either by protecting and attracting votes of former slaves, or at least by discouraging their disenfranchisement. [214] [216] [217]

In 1865, Congress passed what would become the Civil Rights Act of 1866, guaranteeing citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. The bill also guaranteed equal benefits and access to the law, a direct assault on the Black Codes passed by many post-war states. The Black Codes attempted to return ex-slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, prohibiting them from owning firearms, and preventing them from suing or testifying in court. [218]

Although strongly urged by moderates in Congress to sign the bill, President Andrew Johnson vetoed it on March 27, 1866. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress, and that it discriminated in favor of African-Americans and against whites. [219] [220] Three weeks later, Johnson's veto was overridden and the measure became law. [221] Despite this victory, even some Republicans who had supported the goals of the Civil Rights Act began to doubt that Congress really possessed constitutional power to turn those goals into laws. [222] [223] The experience also encouraged both radical and moderate Republicans to seek Constitutional guarantees for black rights, rather than relying on temporary political majorities. [224]

More than seventy proposals for an amendment were drafted. [225] In late 1865, the Joint Committee on Reconstruction proposed an amendment stating that any citizens barred from voting on the basis of race by a state would not be counted for purposes of representation of that state. [226] This amendment passed the House, but was blocked in the Senate by a coalition of Radical Republicans led by Charles Sumner, who believed the proposal a "compromise with wrong", and Democrats opposed to black rights. [227] Consideration then turned to a proposed amendment by Representative John A. Bingham of Ohio, which would enable Congress to safeguard "equal protection of life, liberty, and property" of all citizens this proposal failed to pass the House. [227] In April 1866, the Joint Committee forwarded a third proposal to Congress, a carefully negotiated compromise that combined elements of the first and second proposals as well as addressing the issues of Confederate debt and voting by ex-Confederates. [227] The House of Representatives passed House Resolution 127, 39th Congress several weeks later and sent to the Senate for action. The resolution was debated and several amendments to it were proposed. Amendments to Sections 2, 3, and 4 were adopted on June 8, 1866, and the modified resolution passed by a 33 to 11 vote (5 absent, not voting). The House agreed to the Senate amendments on June 13 by a 138–36 vote (10 not voting). A concurrent resolution requesting the President to transmit the proposal to the executives of the several states was passed by both houses of Congress on June 18. [228] [229]

The Radical Republicans were satisfied that they had secured civil rights for blacks, but were disappointed that the amendment would not also secure political rights for blacks in particular, the right to vote. [230] For example, Thaddeus Stevens, a leader of the disappointed Radical Republicans, said: "I find that we shall be obliged to be content with patching up the worst portions of the ancient edifice, and leaving it, in many of its parts, to be swept through by the tempests, the frosts, and the storms of despotism." [230] [231] Abolitionist Wendell Phillips called it a "fatal and total surrender". [231] This point would later be addressed by the Fifteenth Amendment.

Voting Rights and the 14th Amendment

How much impact did woman suffragists have on the 14th Amendment? How was it that its provisions did not give women the right to vote? What did the 15th Amendment add that wasn't in the 14th?


History is messy. And so are politics. A good historian resists the urge to reduce the many causes or meanings of an event to a single one. One of the most persistent urges of students of American history is to try to decide whether the Civil War was "really" about slavery or about states' rights. Another contender for the "real" cause of the war has been the regional tensions between an agrarian and an industrial economy, and another contender, the unequal unfolding in various segments of society of the universal implications of the Enlightenment's principle of individual freedom.

The "real" cause was all of these and more. Those on each side of the conflict acted with a variety of goals, and individuals were commonly motivated by more than one reason.

The complexity of interests, goals, and motivations continued throughout the Reconstruction period after the war. The radical Republicans, who dominated Congress, were determined to complete the task of eliminating slavery. But this meant more than simply abolishing slavery itself, which occurred through the adoption of the 13th Amendment at the end of 1865. (The 13th Amendment wrote the abolition of slavery into the deepest level of American law, making it permanent. Northern abolitionists had worried that the Emancipation Proclamation of 1863 would be attacked after the end of the war as merely a temporary emergency measure.)

The passage of the 13th Amendment did not end the problem, however, because the freed slaves' legal status was undefined and unclear. From the freed slaves' point of view, this left them without legal protection against attempts in the South to coerce them into a permanent underclass status.

The problem was constitutionally complicated because the pre-war Supreme Court Dred Scott decision had declared black slaves to be non-persons. A 14th Amendment was necessary, therefore, to explicitly establish the status of blacks as persons and citizens through a natural right, inhering simply in having been born in the country and in recognizing their allegiance to it.

This was a philosophical expansion of who was included in the "We the People" phrase in the preamble to the Constitution, but the plight of the still-disenfranchised freed slaves in the South increased the urgency of passing the Amendment. Because the southern states were still occupied federal territory, the freed slaves—for the time being—could be given direct federal protection. However, the states were agitating for readmission to the Union, and their legislative representation had to be calculated. The Constitution had calculated it by counting slaves as three-fifths of a person. That language obviously now had to be amended. In addition, it was urgent that blacks be given full legislative representation to thwart Southern efforts to turn them into a permanent underclass without the full rights of citizens.

For the advocates of women's rights, this is where it got messy, and where some of the various motivations and goals of those who had previously been working together began to unravel. The radical Republicans who drafted the language of the 14th Amendment realized that by making a "natural rights" case for including blacks as full citizens, with all the rights and obligations, they would be making the same case for women. Had the amendment contained only the language of Section 1, women's rights advocates would have been thrilled because it would have strengthened their argument for female suffrage, even though it had to do with establishing citizenship rather than the right to vote per se:

"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."

But this wording would have made the amendment impossible to pass. There was wide political support for protecting the freed slaves, but not for giving women the right to vote.

This political dilemma was "solved" through the language of Section 2, which was needed to specify how the inhabitants of states would be counted for the purpose of legislative representation. It amended the Constitution's "three-fifths" clause.

And a penalty would be exacted from a recalcitrant state for any effort to deny blacks their votes. For each black denied the vote, the state's basis for representation would be reduced by one:

"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… is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States … 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."

Before the war, a slave state was able to count each slave as three-fifths of a person for the purposes of its apportion representation in Congress. Now, for each black who was denied the vote, the state would be forced to deduct a whole person from its basis for apportioned representation. This would apply strong pressure on the state not to disenfranchise blacks. Simultaneously, however, the language of this section of the amendment, in precisely specifying the calculation to be used, qualified the words "inhabitants" and "citizens" with the word "male."

This section, therefore, both enraged women's rights advocates while also allowing the amendment's proponents enough cover to find the votes for passage because it appeared to limit its effects to expanding the male population eligible to vote. The words "male" and "female" had not appeared in the Constitution before this. And women had been making their strongest Constitutional argument for the right to vote based on the "natural rights" reasoning upon which the Constitution relied. They argued that women already had the right to vote (and had always had it), at least implicitly, in the Constitution, but that mere outmoded convention had prevented that right from being recognized. They had been arguing for woman suffrage, in other words, based on the universal human rights they saw as affirmed by implication in the Constitution.

Most of those who had argued for women's rights before and during the war had also allied themselves strongly with the movement to abolish slavery, linking the two causes on the basis of natural rights. But now, by the insertion of the word "male" into the amendment, the Constitution would no longer be technically gender-blind, but would actively "disfranchise" women. Women's rights advocates were particularly stung by the fact that the amendment was written and was being pushed by the very same reformers, such as Senator Charles Sumner, with whom they had stood shoulder to shoulder in the agitation against slavery.

As Elizabeth Cady Stanton remarked on the Republican Congress's determination to extend voting rights to blacks: "to demand his enfranchisement on the broad principle of natural rights, was hedged about with difficulties, as the logical result of such action must be the enfranchisement of all ostracized classes not only the white women of the entire country, but the slave women of the South … the only way they could open the constitutional door just wide enough to let the black man pass in, was to introduce the word 'male' into the national Constitution."

Wendell Phillips, in 1865, as the new head of the American Anti-Slavery Society, turned the society's sights on ensuring black Americans' civil and political rights, especially suffrage. The old-line anti-slavery agitators understood that trying to extend suffrage to African-Americans would require a huge political battle. Trying to extend suffrage to women, too, at the same time, would be impossible. So now he told the society's annual convention, "I hope in time to be as bold as [British reformer John] Stuart Mill and add to that last clause 'sex'!! But this hour belongs to the negro. As Abraham Lincoln said, 'One War at a time' so I say, One question at a time. This hour belongs to the negro." Elizabeth Cady Stanton and Susan B. Anthony both understood immediately that this meant that their erstwhile supporters among the abolitionists—many of whom were now in the councils of legislative influence in the Republican Party—were putting the "woman's cause … in deep water."

Congress proposed the 14th Amendment on June 13, 1866. It was ratified and became law on July 9, 1868. Its adoption caused a deep rift among those who, until then, had made common cause. Many of the supporters of the amendment hoped that the issues of black suffrage and woman suffrage could be separated out and treated sequentially, one after the other. And many of them were acting on the pressing need to deal with the issue of black citizenship and suffrage separate from the issue of woman suffrage out of the necessity to cope with the unfolding events in the aftermath of the war.

Nevertheless, many women's rights activists felt that their cause had been betrayed by their former friends in reform, and that the cause of blacks and women had not just been separated, out of a temporary necessity, but that the cause of women had been set back. Historian Ellen DuBois has noted that this was a watershed event in that women's rights activists, after this, began focusing their organizing efforts specifically on gaining for women the right to vote, rather than relying on broader reforms. They organized both the National Woman's Suffrage Association and the American Woman Suffrage Association in 1869, and began petitioning for a constitutional amendment that would guarantee women the right to vote.

As events unfolded in the South, blacks were often excluded from voting by local restrictions of one kind or another, and Congress recognized that constitutionally defining blacks as citizens, through the 14th Amendment, did not absolutely guarantee their right to vote. Consequently, Congress proposed the 15th Amendment on February 26, 1869. It was ratified and became law on February 3, 1870:

"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

For women's rights advocates, this amendment added nothing new to their struggle for suffrage. Especially frustrating for them was the fact that antebellum reformers had often railed against legal limits to freedom based on "race, color, or sex," and the language of this new amendment seemed to them to be a kind of parody of that, in which "sex" was deliberately replaced by "previous condition of servitude," that is, slavery.

It was a painful irony for many women's rights activists, therefore, that they found themselves actively opposing the passage of the amendment (as some of them had opposed the 14th Amendment). The amendment that would guarantee them the right to vote—the 19th—would not become law until 1920.

For more information

"Petition of E. Cady Stanton, Susan B. Anthony, Lucy Stone, and others asking for an amendment of the Constitution that shall prohibit the several States from disfranchising any of their citizens on the ground of sex, ca. 1865," Records of the U.S. House of Representatives, National Archives and Records Administration, Washington, DC. ARC Identifier 306684.

"Form letter from E. Cady Stanton, Susan B. Anthony, and Lucy Stone asking friends to send petitions for women's suffrage to their representatives in Congress, 12/26/1865," Records of the U.S. House of Representatives, National Archives and Records Administration, Washington, DC. ARC Identifier 306686.


Elizabeth Cady Stanton, Susan B. Anthony, Matilda Joslyn Gage, eds., History of Woman Suffrage, Volume 2: 1861-1876. Rochester, NY: Privately Printed, 1881, pp. 90-106, 333-362, 407-416.

Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869. Ithaca: Cornell University Press, 1978, pp. 53-72.

Eleanor Flexner and Ellen Fitzpatrick, Century of Struggle: The Woman's Rights Movement in the United States, rev. ed. Cambridge, MA: Harvard University Press, 1996, pp. 136-148.

The Fourteenth Amendment Due Process Clause

The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of our most cherished&mdashand most controversial. Consider the following rights that the Clause guarantees against the states:

  • procedural protections, such as notice and a hearing before termination of entitlements such as publicly funded medical insurance
  • individual rights listed in the Bill of Rights, including freedom of speech, free exercise of religion, the right to bear arms, and a variety of criminal procedure protections
  • fundamental rights that are not specifically enumerated elsewhere in the Constitution, including the right to marry, the right to use contraception, and the right to abortion.

The Due Process Clause of the Fourteenth Amendment echoes that of the Fifth Amendment. The Fifth Amendment, however, applies only against the federal government. After the Civil War, Congress adopted a number of measures to protect individual rights from interference by the states. Among them was the Fourteenth Amendment, which prohibits the states from depriving &ldquoany person of life, liberty, or property, without due process of law.&rdquo

When it was adopted, the Clause was understood to mean that the government could deprive a person of rights only according to law applied by a court. Yet since then, the Supreme Court has elaborated significantly on this core understanding. As the examples above suggest, the rights protected under the Fourteenth Amendment can be understood in three categories: (1) &ldquoprocedural due process&rdquo (2) the individual rights listed in the Bill of Rights, &ldquoincorporated&rdquo against the states and (3) &ldquosubstantive due process.&rdquo

&ldquoProcedural due process&rdquo concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property. The key questions are: What procedures satisfy due process? And what constitutes &ldquolife, liberty, or property&rdquo?

Historically, due process ordinarily entailed a jury trial. The jury determined the facts and the judge enforced the law. In past two centuries, however, states have developed a variety of institutions and procedures for adjudicating disputes. Making room for these innovations, the Court has determined that due process requires, at a minimum: (1) notice (2) an opportunity to be heard and (3) an impartial tribunal. Mullane v. Central Hanover Bank (1950).

With regard to the meaning of &ldquolife, liberty, and property,&rdquo perhaps the most notable development is the Court&rsquos expansion of the notion of property beyond real or personal property. In the 1970 case of Goldberg v. Kelly, the Court found that some governmental benefits&mdashin that case, welfare benefits&mdashamount to &ldquoproperty&rdquo with due process protections. Courts evaluate the procedure for depriving someone of a &ldquonew property&rdquo right by considering: (1) the nature of the property right (2) the adequacy of the procedure compared to other procedures and (3) the burdens that other procedures would impose on the state. Mathews v. Eldridge (1976).

&ldquoIncorporation&rdquo of the Bill of Rights Against the States

The Bill of Rights&mdashcomprised of the first ten amendments to the Constitution&mdashoriginally applied only to the federal government. Barron v. Baltimore (1833). Those who sought to protect their rights from state governments had to rely on state constitutions and laws.

One of the purposes of the Fourteenth Amendment was to provide federal protection of individual rights against the states. Early on, however, the Supreme Court foreclosed the Fourteenth Amendment Privileges or Immunities Clause as a source of robust individual rights against the states. The Slaughter-House Cases (1873). Since then, the Court has held that the Due Process Clause &ldquoincorporates&rdquo many&mdashbut not all&mdashof the individual protections of the Bill of Rights against the states. If a provision of the Bill of Rights is &ldquoincorporated&rdquo against the states, this means that the state governments, as well as the federal government, are required to abide by it. If a right is not &ldquoincorporated&rdquo against the states, it applies only to the federal government.

A celebrated debate about incorporation occurred between two factions of the Supreme Court: one side believed that all of the rights should be incorporated wholesale, and the other believed that only certain rights could be asserted against the states. While the partial incorporation faction prevailed, its victory rang somewhat hollow). As a practical matter, almost all the rights in the Bill of Rights have been incorporated against the states. The exceptions are the Third Amendment&rsquos restriction on quartering soldiers in private homes, the Fifth Amendment&rsquos right to a grand jury trial, the Seventh Amendment&rsquos right to jury trial in civil cases, and the Eighth Amendment&rsquos prohibition on excessive fines.

The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed (or &ldquoenumerated&rdquo) in the Constitution. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given.

The Court&rsquos decision to protect unenumerated rights through the Due Process Clause is a little puzzling. The idea of unenumerated rights is not strange&mdashthe Ninth Amendment itself suggests that the rights enumerated in the Constitution do not exhaust &ldquoothers retained by the people.&rdquo The most natural textual source for those rights, however, is probably the Privileges and Immunities Clause of the Fourteenth Amendment, which prohibits states from denying any citizen the &ldquoprivileges and immunities&rdquo of citizenship. When The Slaughter-House Cases (1873) foreclosed that interpretation, the Court turned to the Due Process Clause as a source of unenumerated rights.

The &ldquosubstantive due process&rdquo jurisprudence has been among the most controversial areas of Supreme Court adjudication. The concern is that five unelected Justices of the Supreme Court can impose their policy preferences on the nation, given that, by definition, unenumerated rights do not flow directly from the text of the Constitution.

In the early decades of the twentieth century, the Court used the Due Process Clause to strike down economic regulations that sought to better the conditions of workers on the ground that they violated those workers&rsquo &ldquofreedom of contract,&rdquo even though this freedom is not specifically guaranteed in the Constitution. The 1905 case of Lochner v. New York is a symbol of this &ldquoeconomic substantive due process,&rdquo and is now widely reviled as an instance of judicial activism. When the Court repudiated Lochner in 1937, the Justices signaled that they would tread carefully in the area of unenumerated rights. West Coast Hotel Co. v. Parrish (1937).

Substantive due process, however, had a renaissance in the mid-twentieth century. In 1965, the Court struck down state bans on the use of contraception by married couples on the ground that it violated their &ldquoright to privacy.&rdquo Griswold v. Connecticut. Like the &ldquofreedom of contract,&rdquo the &ldquoright to privacy&rdquo is not explicitly guaranteed in the Constitution. However, the Court found that unlike the &ldquofreedom of contract,&rdquo the &ldquoright to privacy&rdquo may be inferred from the penumbras&mdashor shadowy edges&mdashof rights that are enumerated, such as the First Amendment&rsquos right to assembly, the Third Amendment&rsquos right to be free from quartering soldiers during peacetime, and the Fourth Amendment&rsquos right to be free from unreasonable searches of the home. The &ldquopenumbra&rdquo theory allowed the Court to reinvigorate substantive due process jurisprudence.

In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967), the right of unmarried individuals to use contraception (1972), the right to abortion (1973), the right to engage in intimate sexual conduct (2003), and the right of same-sex couples to marry (2015). The Court has also declined to extend substantive due process to some rights, such as the right to physician-assisted suicide (1997).

The proper methodology for determining which rights should be protected under substantive due process has been hotly contested. In 1961, Justice Harlan wrote an influential dissent in Poe v. Ullman, maintaining that the project of discerning such rights &ldquohas not been reduced to any formula,&rdquo but must be left to case-by-case adjudication. In 1997, the Court suggested an alternative methodology that was more restrictive: such rights would need to be &ldquocarefully descri[bed]&rdquo and, under that description, &ldquodeeply rooted in the Nation&rsquos history and traditions&rdquo and &ldquoimplicit in the concept of ordered liberty.&rdquo Washington v. Glucksberg (1997). However, in recognizing a right to same-sex marriage in 2015, the Court not only limited that methodology, but also positively cited the Poe dissent. Obergefell v. Hodges. The Court&rsquos approach in future cases remains unclear.

Constitution of the United States

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 the power to enforce, by appropriate legislation, the provisions of this article.

Watch the video: 14th Amendment adopted July 28 1868 (August 2022).