14th amendment

Published June 7, 2012 by Tjchase

Fourteenth Amendment to the United States Constitution

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

Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v. Sandford ruling by theSupreme Court (1857) that had held that blacks could not be citizens of the United States.[1]

Its Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.

Its Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision which precipitated the dismantling of racial segregation in United States education. In Reed v. Reed (1971), the Supreme Court ruled that laws arbitrarily requiring sex discrimination violated the Equal Protection Clause.

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

Contents

Text

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

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

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

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

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

Citizenship and civil rights

 
The two pages of the Fourteenth Amendment in the National Archives

Background

Section 1 formally defines citizenship and protects a person’s civil and political rights from being abridged or denied by any state. This represented the overruling of the Dred Scott decision’s ruling that black people were not, and could not become, citizens of the United States or enjoy any of the privileges and immunities of citizenship.[2] The Civil Rights Act of 1866 had already granted U.S. citizenship to all persons born in the United States, as long as those persons were not subject to a foreign power; the framers of the Fourteenth Amendment added this principle into the Constitution to prevent the Supreme Court from ruling the Civil Rights Act of 1866 to be unconstitutional for lack of congressional authority to enact such a law and to prevent a future Congress from altering it by a mere majority vote.

This section was also in response to the Black Codes that southern states had passed in the wake of the Thirteenth Amendment, which abolished slavery in the United States.[3] The Black Codes attempted to return former 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 by preventing them from suing or testifying in court.[4]

Finally, this section was in response to violence against black people within the southern states. A Joint Committee on Reconstruction found that only a Constitutional amendment could protect black people’s rights and welfare within those states.[5]

Citizenship Clause

Main article: Citizenship Clause

There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment.[6][7] During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause[8]—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.”[9] According to historian Glenn W. LaFantasie of Western Kentucky University, “A good number of his fellow senators supported his view of the citizenship clause.”[8] Others also agreed that the children of ambassadors and foreign ministers were to be excluded.[10][11] However, concerning children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three Senators, including Senate Judiciary Committee Chairman Lyman Trumbull, the author of the Civil Rights Act, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the Fourteenth Amendment would confer citizenship on them at birth, and no Senator offered a contrary opinion.[12][13][14]

Senator James Rood Doolittle of Wisconsin asserted that all Native Americans were subject to the jurisdiction of the United States, so that the phrase “Indians not taxed” would be preferable,[15] but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.[16][17]

In Elk v. Wilkins, 112 U.S. 94 (1884), 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.[18]

The clause’s meaning was tested again in the case of United States v. Wong Kim Ark 169 U.S. 649 (1898). 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 on 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.[19]

Loss of citizenship

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

  • Fraud in the naturalization process. Technically, this is not loss of citizenship but rather a voiding of the purported naturalization and a declaration that the immigrant never was a United States citizen.
  • Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the State Department or through other actions that demonstrate desire to give up national citizenship.[20]

For much of the country’s history, voluntary acquisition or exercise of a foreign citizenship was considered sufficient cause for revocation of national citizenship.[21] 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, 387 U.S. 253 (1967), as well as Vance v. Terrazas, 444 U.S. 252 (1980), holding that the Citizenship Clause of the Fourteenth Amendment barred the Congress from revoking citizenship.

Due Process Clause

Main article: Due Process Clause

Beginning with Allgeyer v. Louisiana (1897), the Court interpreted the Due Process Clause of the Fourteenth Amendment as providing substantive protection to private contracts and thus prohibiting a variety of social and economic regulation, under what was referred to as “freedom of contract“.[22] Thus, the Court struck down a law decreeing maximum hours for workers in a bakery in Lochner v. New York (1905) and struck down a minimum wage law in Adkins v. Children’s Hospital (1923). However, the Court did uphold some economic regulation such as state prohibition laws (Mugler v. Kansas), laws declaring maximum hours for mine workers (Holden v. Hardy, 1898), laws declaring maximum hours for female workers (Muller v. Oregon, 1908), President Wilson’s intervention in a railroad strike (Wilson v. New, 1917), as well as federal laws regulating narcotics (United States v. Doremus, 1919). The Court repudiated the “freedom of contract” line of cases in West Coast Hotel v. Parrish (1937).

By the 1960s, the Court had extended its interpretation of substantive due process to include rights and freedoms that are not specifically mentioned in the Constitution but that, according to the Court, extend or derive from existing rights.[22] The Court has also significantly expanded the reach of procedural due process, requiring some sort of hearing before the government may terminate civil service employees, expel a student from public school, or cut off a welfare recipient’s benefits.[23][24]

The Court has ruled that, in certain circumstances, the Due Process Clause requires a judge to recuse himself on account of concern of there being a conflict of interest. For example, in Caperton v. A.T. Massey Coal Co. (2009) 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.[25]

The Due Process Clause has been used to apply most of the Bill of Rights to the states (see below for details).

Equal Protection Clause

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

In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia, 1880) or discriminating against Chinese Americans in the regulation of laundry businesses (Yick Wo v. Hopkins, 1886), as violations of the Equal Protection Clause. However, in Plessy v. Ferguson (1896), the Supreme Court held that the states could impose segregation so long as they provided similar facilities—the formation of the “separate but equal” doctrine.[26] The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908), holding that the states could force private actors to discriminate by prohibiting colleges from having both black and white students. By the early 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.”[27]

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. In Brown the Court ruled that even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was 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.[28] This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation (see Milliken v. Bradley, 1974).[29] 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. In the half century since Brown, the Court has extended the reach of the Equal Protection Clause to other historically disadvantaged groups, such as women and illegitimate children, although it has applied a somewhat less stringent standard than it has applied to governmental discrimination on the basis of race (United States v. Virginia, 1996; Levy v. Louisiana, 1968).[30]

The Supreme Court, since Wesberry v. Sanders (1964)[31] and Reynolds v. Sims (1964),[32] 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“.[33] The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993), the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic underrepresentation in the state’s congressional delegations.[34] In League of United Latin American Citizens v. Perry (2006), the Court ruled that Tom DeLay‘s Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause.

Incorporation

In Barron v. Baltimore (1833), the Supreme Court ruled that the Bill of Rights did not apply to the states. While many state constitutions are modeled after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. According to Akhil Reed Amar, the framers and early supporters of the Fourteenth Amendment believed that it would ensure that the states would be required to recognize the individual rights the federal government was already required to respect in the Bill of Rights and in other constitutional provisions; all of these rights were likely understood as falling within the “privileges or immunities” safeguarded by the amendment.[35] However, in the Slaughter-House Cases (1873), the Supreme Court ruled that the amendment’s Privileges or Immunities Clause was limited to “privileges or immunities” granted to citizens by the federal government by virtue of national citizenship. The Court further held in the Civil Rights Cases (1883) that the amendment was limited to “state action” and, therefore, did not authorize the Congress to outlaw racial discrimination on the part of private individuals or organizations. Neither of these decisions has been overturned and have been specifically reaffirmed several times.[36]

However, by the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states, under what is known as theincorporation doctrine.[37] The Supreme Court has held that the amendment’s Due Process Clause incorporates all of the substantive protections of the First,SecondFourthFifth (except for its Grand Jury Clause) and Sixth Amendments and the Cruel and Unusual Punishment Clause of the Eighth Amendment.[38]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.[39] The Seventh Amendment has been held not to be applicable to the states.[38][40]

Apportionment of Representatives

Section 2 altered the way how much representation each state receives in the House of Representatives is determined. It counts all residents for apportionment, overriding Article I, Section 2, Clause 3 of the Constitution, which counted only three-fifths of each state’s slave population.

Section 2 also reduces a state’s apportionment if it wrongfully denies any adult male’s right to vote, while explicitly permitting felony disenfranchisement. However, this provision was never enforced while the southern states continued to use various pretexts to prevent many blacks from voting right up until the passage of Voting Rights Act in 1965.[41]

Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment,[42] but the Supreme Court has acknowledged the provisions of Section 2 in recent times. For example, in Richardson v. Ramirez, 418 U.S. 24 (1974) the Court cited Section 2 as justification for the states disenfranchising felons. In his dissent, Justice Marshall explained the history of the Section 2 in relation to the Post-Civil War Reconstruction era:

The historical purpose for section 2 itself is, however, relatively clear and, in my view, dispositive of this case. The Radical Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance. There were two alternatives available—either to limit southern representation, which was unacceptable long-term, or to ensure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time. Section 2 of the Fourteenth Amendment was the resultant compromise. It put Southern States to a choice—enfranchise Negro voters or lose congressional representation. […] Section 2 provides a special remedy—reduced representation—to cure a particular form of electoral abuse—the disenfranchisement of Negroes.[43]

Participants in rebellion

Section 3 prohibits the election or appointment to any federal or state office of any person who had held any of certain offices and then engaged in insurrection, rebellion or treason. However, a two-thirds vote by each House of the Congress can override this limitation. In 1898, the Congress enacted a general removal of Section 3’s limitation.[44]

In 1975, Robert E. Lee‘s citizenship was restored by a joint congressional resolution, retroactive to June 13, 1865.[45] In 1978, pursuant to Section 3, the Congress posthumously removed the service ban from Jefferson Davis.[46]

Validity of public debt

Section 4 confirmed the legitimacy of all United States 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.[47] In Perry v. United States (1935), the Supreme Court ruled that under Section 4 voiding a United States government bond “went beyond the congressional power.”[48]

The United States debt-ceiling crisis in 2011 raised the question of what powers Section 4 gives to the President. 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.[49] 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]”.[50] The issue of what effect Section 4 has regarding the debt ceiling remains unsettled.[51]

Power of enforcement

Section 5, the last section, was construed broadly by the Supreme Court in Katzenbach v. Morgan (1966).[52] However, the Court, in City of Boerne v. Flores (1997), said:

Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.[53]

Proposal and ratification

The 39th United States Congress proposed the Fourteenth Amendment on June 13, 1866.

Ratification of the Fourteenth Amendment was bitterly contested: all the Southern state legislatures, with the exception of Tennessee, refused to ratify the amendment. This refusal led to the passage of the Reconstruction Acts. Ignoring the existing state governments, military government was imposed until new civil governments were established and the Fourteenth Amendment was ratified.[54]

By July 9, 1868, three-fourths of the states (28 of 37) ratified the amendment:[55]

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

*Ohio passed a resolution that purported to withdraw its ratification on January 15, 1868. The New Jersey legislature also tried to rescind its ratification on February 20, 1868, citing procedural problems with the amendment’s congressional passage, including that specific states were unlawfully denied representation in the House and the Senate at the time.[56] The New Jersey governor had vetoed his state’s withdrawal on March 5, and the legislature overrode the veto on March 24.

On July 20, 1868, Secretary of State William H. Seward certified that the amendment had become part of the Constitution if the rescissions were ineffective, and presuming also that the later ratifications by states whose governments had been reconstituted superseded the initial rejection of the prior state legislatures.[57]

The Congress responded on the following day, declaring that the amendment was part of the Constitution and ordering Seward to promulgate the amendment.

Meanwhile, two additional states had ratified the amendment:

  1. Alabama (July 13, 1868, the date the ratification was “approved” by the governor)
  2. Georgia (July 21, 1868, after having rejected it on November 9, 1866)

Thus, on July 28, Seward was able to certify unconditionally that the amendment was part of the Constitution without having to endorse the Congress’s assertion that the withdrawals were ineffective.

There were additional ratifications and rescissions; by 2003, the amendment had been ratified by all of the 37 states that were in the Union in 1868:[58]

  1. Virginia (October 8, 1869, after having rejected it on January 9, 1867)
  2. Mississippi (January 17, 1870, after having rejected it on January 31, 1868)
  3. Texas (February 18, 1870, after having rejected it on October 27, 1866)
  4. Delaware (February 12, 1901, after having rejected it on February 7, 1867)
  5. Maryland (1959, after having rejected it on March 23, 1867)
  6. California (1959)
  7. Oregon (1973, after withdrawing it on October 15, 1868)
  8. Kentucky (1976, after having rejected it on January 8, 1867)
  9. New Jersey (2003, after having rescinded on February 20, 1868)[59]
  10. Ohio (2003, after having rescinded on January 15, 1868)

Supreme Court cases

Citizenship

Corporate personhood

Privileges or immunities

Procedural due process/Incorporation

Substantive due process

Equal protection

Apportionment of Representatives

Power of enforcement

References

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