The Fourteenth Amendment

The Fourteenth Amendment, ratified during the Reconstruction Era, gives Americans a bundle of rights, including birthright citizenship, equal protection, and due process. It provides a solid foundation for a more perfect union. And our understanding and application of the Fourteenth Amendment have evolved as our nation has evolved.

The U.S. Civil War was more than just a bitter conflict between the North and the South.  It produced a seismic social and political shift in American society that still impacts us today. Following the war, slavery was abolished, and the nation embarked on Reconstruction. The Reconstruction Amendments to the United States Constitution were instrumental in laying the groundwork for these efforts:

• The Thirteenth Amendment officially abolished slavery. 
• The Fourteenth Amendment offered a significant bundle of citizenship rights. 
• The Fifteenth Amendment granted voting rights to Black men.
  

This article focuses on the Fourteenth Amendment. It provides an overview of the Amendment, including the historical backdrop that made Congress amend the U.S. Constitution.

The U.S. Civil War and Constitutional Crisis

The American Civil War lasted four years, in which eleven Southern states seceded from the Union to form the Confederate States of America. These Southern states relied on agriculture and the free labor of enslaved Africans to support their way of life. 

Although historians cite many reasons for the secession and the war that followed, the role of slavery in American society was chief among them. 

Before the war ended, President Abraham Lincoln issued the Emancipation Proclamation, which, theoretically, freed all enslaved persons in America. 

That was the easy part. The Constitutional crisis that began when those eleven states voted to secede from the Union did not end with the war.  

Reconstruction and the Need for Amendments

Since Lincoln used his war powers to issue the Emancipation Proclamation, Congress had to act to ensure that the nation would not return to slavery. They rightfully believed a constitutional amendment would carry more weight than Lincoln's order.  

After the war, Reconstruction began, and Congress had to determine the following:

• How to integrate formerly enslaved people into American society

• How to bring former Confederates back into the fold

• How to deal with our national debt following the war

The Fourteenth Amendment helped Congress accomplish these goals.

Fourteenth Amendment Fundamentals

Congress passed the Fourteenth Amendment in 1866 during the post-Civil War Reconstruction Era. Although African Americans briefly enjoyed some freedoms, many states quickly imposed legislation, the Black Codes, to control them.  

The Black Codes covered almost every area of life, from labor to marriage, and required strict racial separation. It was clear that the federal government needed to intervene.

Congress answered the call with the Civil Rights Act of 1866, giving African Americans fundamental economic rights, including the right to create contracts.  Yet, this was not enough.  

Parts of the Fourteenth Amendment

Amendments to the United States Constitution are rare by design. It is not an easy process, which helps underscore the significance of the Reconstruction Amendments. 

The Fourteenth Amendment accomplished many different objectives at once. This Amendment ensured equal rights for the newly freed citizens through five clauses:

• Citizenship clause

• Privileges or immunities clause

• Due process clause

• Equal protection clause

• Disqualification clause

The amendment also grants Congress the power to pass legislation that supports these objectives via the enforcement clause. 

The full text of the Fourteenth Amendment 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.

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.

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.

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.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The Citizenship Clause

The Fourteenth Amendment's first clause addresses U.S. citizenship and who can claim it. Although the citizenship clause is clear, it was necessary after the Supreme Court's decision in Dred Scott v Sanford, which denied citizenship rights to formerly enslaved persons born in the U.S.  

Dred Scott was born into slavery. Dr. John Emerson purchased Scott after his enslaver died and took him to the Wisconsin Territory, where slavery was illegal. Scott met and married his wife, Harriett Robinson, and had two children there. The family relocated to St. Louis with Emerson a few years later. 

At that time, per a Missouri statute, an enslaved person taken to a free state was automatically free.  In theory, that person could not lose their status if they returned to a slave state.  When Emerson's widow transferred ownership of the Scott family to her brother, the Scotts sued for their freedom. The case ultimately came before the Supreme Court of the United States (SCOTUS), where they lost.

The Scott Court determined that Scott was not an American citizen because he descended from Africans brought to the country as slaves. Therefore, he could not bring a suit in federal court. This decision applied to all Americans of African descent at the time. 

The citizenship clause overturned the Dred Scott decision and ensured that everyone born or naturalized in the United States was a citizen. 

The Privileges and Immunities Clause

The Fourteenth Amendment's second clause deals with privileges and immunities.  The privileges and immunities clause ensures that all citizens enjoy the same rights in each state.  SCOTUS, the final arbiter of U.S. Constitutional law, has wrestled with defining these privileges and immunities since the Amendment became law.

In the Slaughter-House Cases, SCOTUS determined that the privileges and immunities contemplated in the Amendment only included those rights already enumerated in the Constitution. 

The Slaughterhouse Cases came out of Louisiana. The Louisiana legislature gave an exclusive monopoly to a slaughterhouse company in New Orleans.  

Local independent butchers sued in state court. They argue that this monopoly violated their rights under the Fourteenth Amendment.  They believed that the law was unconstitutional because it deprived them of the privilege of operating their own slaughterhouses. 

SCOTUS disagreed. They noted that the privileges and immunities clause only applied to the federal government and not state citizenship. In other words, the Fourteenth Amendment only applied to privileges and immunities of national citizenship as found in the Constitution.

The Due Process Clause

The due process clause ensures that no one is denied life, liberty, or property without due process of law. The Supreme Court has recognized two types of due process:

• Procedural due process

• Substantive due process

Procedural due process addresses the procedures a government can use in applying the law.  Substantive due process addresses fundamental rights.

Procedural Due Process

Brady v. Maryland provides a good illustration of procedural due process.  

In Brady, Maryland, prosecutors withheld favorable evidence from a defendant in a murder trial. The evidence was a statement in which the defendant's companion confessed to the murder. The defendant's counsel asked to see the companion's statements. But the prosecution withheld that statement with the confession.  

SCOTUS held that this willful suppression of evidence violated the Due Process Clause of the Fourteenth Amendment. Because this case dealt with how the government acted, it is an example of procedural due process.

Substantive Due Process

Substantive due process deals with our individual and fundamental rights. Obergefell v. Hodges provides a recent example of substantive due process.  

Obergefell dealt with same-sex marriage and individual states' refusal to recognize these marriages. The Court recognized the right to marry as a fundamental right guaranteed by the Fourteenth Amendment. They held that states could not deprive same-sex couples of this right.

The Equal Protection Clause

The equal protection doctrine ensures that all Americans enjoy equal protection of their rights under the law.  The equal protection clause helps support this doctrine. 

Obergefell is also an example of the equal protection doctrine.  State laws that separate same-sex and opposite-sex marriages violate the equal protection clause of the Fourteenth Amendment.

The Disqualification Clause

The purpose of the disqualification clause was to ensure former Confederate officials did not return to public office after the Civil War.  

Although this clause was explicitly directed at former Confederate officials in the late 19th century, it was recently used (2022) to remove a New Mexico County commissioner from office.

State Action Doctrine

The Fourteenth Amendment only applies to actions by state governments (state actions), not private actions. Consider, for example, Obergefell, which involved the fundamental right to marry. Some state laws interfered with that right. The state law is a government action. 

Courts also attribute the discriminatory actions of state officers (Governor, Sheriff, Judges) to the state. This is true even if the state did not authorize the discriminatory conduct.  

The Fourteenth Amendment and the Evolution of Civil Rights

Many people view the Constitution as a living document, ever-evolving.  This is especially true of the Fourteenth Amendment. The Fourteenth Amendment has played a decisive role in the evolution of civil rights in America and in shaping American society.  

Civil rights strategists have used this Amendment to ensure all Americans enjoy the Constitution's promises. This was the case with Brown v. Board of Education, the landmark civil rights case that overturned the separate but equal doctrine from Plessy v. Ferguson.

Plessy v. Ferguson

Plessy v. Ferguson is a landmark case that legalized the separate but equal doctrine. Homer Plessy challenged the constitutionality of a Louisiana law requiring separate train cars for black and white passengers under the Fourteenth Amendment. In 1896, the Supreme Court determined that the law was constitutional, effectively ushering in a period of legalized racial segregation in America. 

Brown v. Board of Education

Brown v. Board of Education challenged the separate but equal doctrine as applied to public schools.  The Brown court held that the segregation of black and white children in public schools based solely on race denies black children equal protection under the 14th Amendment. 

Twelve years later, the Court again relied on the 14th Amendment when it struck down anti-miscegenation laws in Loving v. Virginia.  

Loving v. Virginia

In Loving v. Virginia, Richard and Mildred Loving sued the state of Virginia over Virginia's laws banning interracial marriage.  Virginia passed the Racial Integrity Act of 1924, which prohibited marriages between black and white Virginians.  The Supreme Court held that Virginia's laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The Court has also applied the Fourteenth Amendment in sex discrimination cases (Reed v. Reed), the right to privacy (Roe v. Wade), same-sex marriage (Obergefell v. Hodges) and helped shape society as we know it.

These cases illustrate the broad and lasting impact the Fourteenth Amendment has had on both America and Americans.