Fourteenth Amendment: Rules for Reconstructing

The Passage

After Abraham Lincoln was assassinated in April 1865, President Andrew Johnson was left with the complex process of bringing the former Confederate states back into the Union after the Civil War and emancipation of all slaves. While Johnson, a Democrat and former slaveholder from Tennessee, supported emancipation, he had a different view from  Congress, which had a Republican majority, on what the start of the Reconstruction era should look like. Johnson tended to show more leniency toward former Confederate states as they were incorporated back into the Union.

Many northerners were angry when the newly elected southern state legislatures, which were mostly headed by former Confederate leaders, enacted black codes. Black codes were restrictive laws designed to limit the freedom of African Americans and guarantee that they are available as cheap labor for white planters. This led Congress to enforce the new Thirteenth Amendment, which abolished slavery, by creating the Civil Rights Act of 1866 to protect the rights of African Americans. President Johnson vetoed the bill, but Congress successfully overrode his veto and made it into law in April of 1866. However, some Republicans in Congress thought another amendment was needed to support this law under the Constitution.

At the end of April, Representative Thaddeus Stevens proposed combining several different legislations, including civil rights for African Americans, how to apportion representatives in Congress, and how to punish the Confederate States and handle the Civil War debt, into one constitutional amendment. Both houses of Congress approved the amendment, and it was submitted to the states for ratification. President Johnson was clear that he opposed the Fourteenth Amendment, but both houses had Republican majorities and therefore had the power to pass the amendment despite his veto. Southern states were also reluctant to ratify the amendment, but Congress ensured that they would do so by requiring ratification of the Thirteenth and Fourteenth Amendments for the states to regain representation in Congress. 

On July 9, 1868, Louisiana and South Carolina ratified the amendment, and the Fourteenth Amendment achieved the necessary three-fourths majority to be added to the Constitution. However, there is debate over the official date of ratification because before these two states’ approvals, Ohio and New Jersey had “withdrawn” their approvals. This was not provided for in the Constitution, so there was question over whether these withdrawals were legitimate. As this controversy occurred over the next two weeks, both Alabama and Georgia ratified the Fourteenth Amendment, and Congress declared the amendment a valid part of the Constitution.

Amendment Text

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Interpretation

The opening sentence of Section 1, also known as the Citizenship Clause, clearly outlines race-blind citizenship based on birth and naturalization. The next clause, known as the Privileges and Immunities Clause, expands the civil and legal rights of all American citizens by protecting them from states violating their rights instead of just the federal government. The third clause, or Due Process clause, echoes the sentiments of the Fifth Amendment, which provides a number of rights related to criminal and civil legal proceedings, and applies this requirement to states as well as the federal government. Finally, the Equal Protection Clause prohibits state governments from discriminating against Black Americans by providing equal protection for all citizens under the law.

Section 2 of the Fourteenth Amendment repeals the three-fifths clause of the Constitution, which counted slaves as three-fifths of a person as a means to apportion representation in Congress. Regardless of race, each citizen is counted as one whole person, and all male citizens over the age of 21 are granted the right to vote. The section punishes states that do not allow all males over age 21 to vote by reducing their population for representation in Congress.

Section 3 disqualifies any person from public office who previously took an oath as a federal or state officer, engaged in insurrection or rebellion, unless there is a two-thirds majority in Congress. This section intended to prevent former leaders of the Confederacy from regaining political power.

Section 4 confirms the legitimacy of all public debt acquired by Congress in an effort to put an end to rebellion or insurrection. It also states that neither the United States nor any states will repay war debts sustained to aid rebellion or compensate former slave owners for the emancipation of their slaves

Section 5, the final section of the Fourteenth Amendment, like the Thirteenth Amendment, gives Congress the power to pass laws to enforce the provisions within the Amendment.

Major Court Cases

Prior to the ratification of the Fourteenth Amendment, in the infamous 1857 Case Dred Scott v. Sandford, Dred Scott, born a slave, sued his owner for freedom after traveling with him to Illinois, a free territory. The Court concluded that Scott would remain a slave because African Americans, whether enslaved or free, were not citizens and therefore were not granted the power to sue in the federal courts. In 1868, the Fourteenth Amendment overturned the Dred Scott decision by granting citizenship to all individuals born in the United States, regardless of race.

Most Supreme Court Cases involving the Fourteenth Amendment concern due process and equal protection under the law. 

In early decisions involving the Fourteenth Amendment, the Supreme Court infrequently applied its protections on a state and local level. In Plessy v. Ferguson, a 1896 Case, the Court held that segregation was acceptable according to the Constitution as long as the facilities were “equal.” Nearly sixty years later, in Brown v. Board of Education, the Court overturned that decision and ruled that separate is inherently unequal, so public school segregation based on race violates the Fourteenth Amendment. 

The Court’s decision in Mapp v. Ohio, a 1961 Court Case, determined what would occur if police obtained evidence from an illegal search or seizure. Prior to the case, the evidence could still be collected, but the police would be condemned. However, the Court held that evidence collected from an unlawful search should be excluded from an individual’s trial, citing the Due Process Clause of the Fourteenth Amendment.

In later decisions, the Court has used the Fourteenth Amendment more creatively. In Roe v. Wade, a 1973 Case, the Court determined that Americans have a right to privacy, which is violated by statutes that ban abortions. In the 2000 Case Bush v. Gore, George W. Bush’s lawyers successfully argued that the Florida recount that would decide the presidency violated the Fourteenth Amendment’s Equal Protection Clause because different standards of counting were used in different municipalities, eliminating the recount. In Obergefell v. Hodges, a 2015 Case, the Court legalized same-sex marriage across the nation using the Due Process and Equal Protection Clauses.

Controversies

Modern controversy surrounding the Fourteenth Amendment is related to its meaning and its scope of power or overall effectiveness today. First, the meaning of the Fourteenth Amendment is not necessarily straightforward, apparent by the fact that the Supreme Court’s interpretations of certain clauses, such as the Equal Protection Clause, have changed significantly over time. Second, many people question how much power Congress has to enforce the Fourteenth Amendment. Similarly, others point out that the Amendment may not be as impactful today as we think, considering that people of all races, genders, and abilities do not necessarily have “equal” protection under the law in practice.

Why Care?

The Fourteenth Amendment is one of the most important amendments of the Constitution, outlining many rights and protections guaranteed to citizens of the United States. The Amendment transformed our democracy and has been the foundation for many pivotal Supreme Court decisions. While many may not recognize it, the Fourteenth Amendment is    one of the most relevant amendments in Americans’ lives today.

Think Further

  1. How does the Fourteenth Amendment affect the U.S. today?
  2. How effective do you think the Fourteenth Amendment has been throughout history and is today? Identify its strengths and limitations.
  3. Identify and discuss connections between the Fourteenth Amendment and previous amendments. What does the Fourteenth Amendment do that these do not? 

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  1. History.com Editors. “14th Amendment.” History.com, https://www.history.com/topics/black-history/fourteenth-amendment.
  2. “The 14th Amendment of the U.S. Constitution.” “14th Amendment: Citizenship Rights, Equal Protection, Apportionment, Civil War Debt.” National Constitution Center, https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv.
  3. Schwab, Nikki. “Here’s Why the 14th Amendment Is A Big Deal.” U.S. News, https://www.usnews.com/news/articles/2015/07/28/heres-why-the-14th-amendment-is-a-big-deal
  4. NCC Staff. “10 Supreme Court Cases about the 14th Amendment.” National Constitution Center, https://constitutioncenter.org/blog/10-huge-supreme-court-cases-about-the-14th-amendment
  5. Epps, Garrett. “The Struggle Over the Meaning of the 14th Amendment Continues.” The Atlantic, https://www.theatlantic.com/ideas/archive/2018/07/the-struggle-over-the-meaning-of-the-14th-amendment-continues/564722/