Fourteenth Amendment

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Author: Wayne D. Moore
Editors: Stephen Schechter , Thomas S. Vontz , Thomas A. Birkland , Mark A. Graber , and John J. Patrick
Date: 2016
From: American Governance(Vol. 2. )
Publisher: Gale, a Cengage Company
Document Type: Law overview
Length: 3,624 words
Content Level: (Level 5)
Lexile Measure: 1450L

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Fourteenth Amendment

The Fourteenth Amendment is among the most significant and controversial parts of the US Constitution. Added to the Constitution in 1868 in the aftermath of the American Civil War, this amendment defines criteria for national and state citizenship, imposes significant restrictions on the states, constitutionalizes some of the key terms of the Civil War settlement, and delegates enforcement power to the US Congress. No other part of the Constitution has been at the center of more constitutional litigation.

BACKGROUND

Many people thought the Fourteenth Amendment's precursor, the Thirteenth Amendment, would eliminate slavery and its vestiges. But the Democrats in control of southern state governments continued to deny rights to black persons even after their formal emancipation. For example, southern states enacted Black Codes that limited the freedom of black persons, denied them basic civil rights, and essentially kept them in bondage.

In addition, the Thirteenth Amendment had the unanticipated consequence of enhancing the South's relative political power within national institutions. Under the original Constitution, the number of representatives per state in the House of Representatives was proportional to the total number of free persons plus three-fifths of “other persons” within each state. That meant slaves had counted as three-fifths of a person for purposes of apportioning representatives among the states. Once the Thirteenth Amendment freed those persons, they counted as full persons—even if they were not allowed to vote. Without further constitutional change, the South's power in Congress and in the Electoral College would increase whereas the North's would not.

These issues of power were of great concern to the northern Republicans who had controlled national institutions during the Civil War. With the war over, it was likely that northern and southern Democrats, who had outnumbered Republicans nationally but had split sectionally before the war, would reunite, try to regain control of national institutions, and deny fundamental rights to black persons.

PROPOSAL AND RATIFICATION PROCESSES

As an immediate strategy to avoid that result, the Republicans in control of Congress refused to seat representatives of the southern states at the opening of the first session of the Thirty-Ninth Congress in December of 1865. To fashion a longer-term remedy, the Republican leadership also created a Joint Committee on Reconstruction. The Fourteenth Amendment emerged from that committee and became the centerpiece of Congress's initial plan for reconstruction. Congress also passed the Civil Rights Act of 1866.

The Civil Rights Act and the Fourteenth Amendment were linked to one another in a number of significant ways. As would Section 1 of the amendment, the Civil Rights Act defined citizenship expansively to include native-born persons subject to US jurisdiction. The federal law also declared that every citizen of every race and color had the same right to make and enforce contracts, sue, give evidence, hold and convey property, enjoy the full benefits of laws and proceedings for the security of person and property, and be subject to the same punishments. President Andrew Johnson vetoed this law, arguing that only the states, not Congress, could regulate these civil rights. Congress overrode the presidential veto, but even some of those who backed the Civil Rights Act had concerns about the act's validity. One of the primary purposes of the Fourteenth Amendment was to reinforce Congress's power to pass this law and other laws like it. In addition, the amendment itself includes guarantees paralleling those in the Civil Rights Act. Being part of the US Constitution, the amendment's guarantees (unlike those in the federal law) would be beyond the reach of congressional repeal through ordinary legislative processes.

President Andrew Johnson's veto of the Civil Rights Act was, moreover, the opening salvo in a political war between the US president and Congress over matters of Page 245  |  Top of Articlereconstruction. Johnson argued that the southern states were entitled to immediate readmission to Congress, and he argued that the “rump Congress” had no authority to propose a new constitutional amendment while the southern states were excluded from that body. The Republican leadership in Congress rejected these arguments and insisted that guarantees such as those in the Fourteenth Amendment were essential preconditions to the South's readmission to Congress.

The Joint Committee initially proposed a number of separate amendments and then consolidated them into an omnibus proposal that the committee presented to both Houses of Congress on April 30, 1866. The draft's provisions were similar to those of the eventual Fourteenth Amendment, except that Section 1 did not define citizenship, and Section 3 would have deprived former Confederate leaders of the right to vote in US elections prior to 1870. The latter provision proved especially controversial both within Congress and within the nation at large. The Senate weakened Section 3's precursor to limit office-holding by specified Confederate leaders instead of barring them from voting.

Two-thirds of the seated and voting members of the Senate and House of Representatives approved the text of the Fourteenth Amendment on June 8 and 13, 1866, respectively. Republicans voted along party lines in favor of the proposal, and Democrats voted against it. The Annals of Congress record the vote in the Senate as 33– 11 in favor, with 5 absent, and in the House as 120–32 in favor, with 32 not voting.

The proposed amendment was then forwarded to all of the states for ratification, including the southern states excluded from representation in Congress. President Andrew Johnson, northern Democrats, and the South's white leadership strongly opposed the proposed Fourteenth Amendment. As the centerpiece of the Republican-led Congress's plan for reconstruction, the proposed amendment became a major issue in the 1866 midterm elections.

Based on the results of those elections, the Republicans retained control of more than two-thirds of both houses of Congress and claimed a popular mandate in support of the Fourteenth Amendment. Even so, all of the excluded southern states, other than Tennessee, refused to ratify the proposal. For this and other reasons, Congress passed the Reconstruction Acts of 1867 and 1868. They provided for the military occupation and forcible reconstruction of the South and provided that the excluded states would not be readmitted to Congress unless and until they approved the proposed Fourteenth Amendment. These processes eventually ran their course, and the amendment was ratified and declared part of the Constitution in July of 1868, despite efforts by the legislatures of Ohio and New Jersey to withdraw their prior ratifications.

Controversies surrounding the Fourteenth Amendment's original validity have surfaced from time to time since the Reconstruction period, including in the aftermath of the US Supreme Court's controversial decision in Brown v. Board of Education, 347 U.S. 483 ( 1954 ). For more than thirty years, Bruce Ackerman of Yale Law School has argued that the amendment was invalid based on Article V's amending provisions because the southern states were effectively forced to ratify it. But he has argued that the amendment is nevertheless valid based on its approval by “the People” outside Article V processes. The more conventional view is that the amendment is valid based on Article V.

SECTION 1

The Fourteenth Amendment begins by setting forth qualifications for US and state citizenship. The standard of birthright citizenship effectively overturned the US Supreme Court's decision in Dred Scott v. Sandford, 60 U.S. 393 ( 1856 ). Writing for a majority of the justices in that case, Chief Justice Roger B. Taney had argued that a black person, even if free, could not be a citizen under the US Constitution and had no rights based on it. With the Thirteenth Amendment's abolition of slavery, it was still possible to regard black persons as noncitizens. In addition to addressing this issue, the citizenship clause has been controversial on account of its conferring citizenship to children born in the United States even if their parents are illegal aliens.

The second sentence of Section 1 includes three of the US Constitution's most important limits on the states. The Republicans in Congress apparently thought the privileges or immunities, due process, and equal protection clauses would be important in at least three ways. First, they constitutionalized the guarantees of the Civil Rights Act of 1866, such that they could not be repealed through ordinary legislative processes. There was concern in particular that Democrats might regain control of Congress and effectively nullify or reverse the fruits of the North's victory in the Civil War. Section 1's guarantees would be an obstacle to their doing so. Second, these clauses, both on their own and in conjunction with Section 5 (see below), were designed to reinforce Congress's authority to pass the Civil Rights Act and other laws like it. Third, the amendment's prohibitions on the states would be directly enforceable by judges. In the short term, this would also be important if Democrats regained control of Congress. In the longer term, judges could continue to enforce Section 1's mutually reinforcing guarantees.

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These three provisions—especially the due process and equal protection clauses—have been at the center of more constitutional litigation than any other part of the US Constitution. They have also played important roles in constitutional developments outside courts, such as popular movements seeking greater equality in the protection and enjoyment of civil rights. (Some of the major interpretive controversies surrounding these clauses are covered in their respective entries.)

SECTION 2

Section 2 most directly addressed the issues of political power that motivated the entire amendment. Most immediately, this section was designed to penalize the southern states if they disallowed adult black male persons (who would qualify as “citizens” based on Section 1 of the amendment) from voting in national or state elections. But Section 2 would not bar states from denying black males the right to vote based on their race, ethnicity, or previous condition of servitude, as would the Fifteenth Amendment. It would instead penalize the states, by reducing their apportionment in Congress, for denying black males—or any other adult males—the right to vote except based on their participation in rebellion or other crime. Thus the section would not penalize the states if they took away the electoral franchise from those who had fought for the Confederacy in the Civil War. Nor would Section 2 penalize the states for not allowing convicted criminals to vote. It also did not prevent states from continuing to deny the franchise to women based on their sex, or even penalize them for doing so. On the contrary, advocates of gender equality were highly critical of Section 2 for introducing into the US Constitution, for the first time, an explicit classification based on sex. They argued that this provision was especially problematic considering the political fundamentality of the right to vote.

Looking beyond the details of Section 2's provisions, it is important to understand how the Republicans envisioned Section 2 operating. They understood that the white males who had been in control of the South before the Civil War would likely continue to side predominantly with the Democratic Party. But they hoped and expected that black males would ally themselves with the Republican Party if they were allowed to vote. Considering that blacks were roughly half the populations in a number of southern states, whether a state elected Republican or Democratic representatives to the US House of Representatives and state legislatures (who would, in turn, select US senators) might well have hinged on whether black males were allowed to vote in that state. If a state allowed black males to vote, its apportionment in Congress would increase compared to the antebellum era, and the Republicans hoped the state would send Republicans to Congress. On the other hand, if the state disallowed black males from voting, Democrats might remain a majority of the state electorate, but the state would have fewer representatives in Congress. Critically at stake, among other things, was whether Republicans or Democrats would control the US Congress, and a similar dynamic would apply to presidential elections. These considerations point toward why Thaddeus Stevens, the Radical Republican Representative of Pennsylvania, described Section 2 as its “most important” section when he introduced into the House the text of what became the Fourteenth Amendment ( Congressional Globe, 39th Congress, First Session, 2459, May 8, 1866 ).

Before the Fourteenth Amendment went into effect, however, political events largely overtook the premises underlying Section 2. When Congress had proposed the amendment in 1866, the Republican Party had not been united in support of requiring states to extend the franchise to black males. But this idea had gained broader support by early 1867. In the wake of the 1866 elections, the Reconstruction Acts of 1867 and 1868 required the southern states to extend the franchise to black males and to embed that right in new or amended state constitutions. Accordingly, by the time the Fourteenth Amendment went into effect in 1868, southern states did not have the choice presumed by Section 2. In addition, political developments in 1868 and 1869 underscored the vulnerability of the Republican party in the South and led to the Fifteenth Amendment.

The Fifteenth Amendment's ban on states' denying the right to vote based on race, color, or previous condition of servitude diminished the significance of Section 2 of the Fourteenth Amendment. In addition, Congress never enforced this section even though it might have done so in states that denied the franchise to black persons and others who were not criminals. Even so, this section provides valuable insights into issues of political power surrounding the entire amendment. And it provides continuing support for states that ban convicted criminals from voting.

SECTION 3

Section 3 of the Fourteenth Amendment disqualified specified leaders of the Confederacy from holding various federal and state governmental offices unless the disqualification was removed by two-thirds vote of both houses of Congress. Like Section 2, this disqualification was aimed at limiting the political power of the former Confederate leaders. It also removed the pardoning power from the president. The Reconstruction Acts had parallel limitations, which were both controversial and significant Page 247  |  Top of Articlewhile they remained in effect. In 1872 and 1898, Congress removed Section 3's disability for former Confederate leaders. Section 3 was invoked again in 1919 and 1920 to prevent Victor Berger, who had been convicted of violating the Espionage Act of 1917, from taking his seat in the US House of Representatives.

SECTION 4

Republicans were concerned in the aftermath of the Civil War that the Democrats, if they regained power within national institutions, would refuse to honor the national debt incurred during the war, would honor the Confederate debt, and would compensate former slave owners for the economic losses they incurred in connection with the abolition of slavery. Section 4 of the Fourteenth Amendment explicitly guaranteed the payment of the US debt, disallowed honoring the Confederate debt, and barred claims against the United States based on the abolition of slavery. This provision has continuing relevance to controversies over whether Congress has an obligation to raise the debt ceiling to allow payment of the federal debt, or whether such debts may be paid even if not within a congressionally authorized debt ceiling.

SECTION 5

It has become common to view the US Supreme Court and other courts as having primary authority to enforce constitutional limitations. But Section 5 of the Fourteenth Amendment explicitly gives Congress “power to enforce, by appropriate legislation,” the Fourteenth Amendment's remaining provisions. That includes Section 1's important guarantees, which explicitly limit “the states.”

One of the primary objectives of the Republican sponsors of the Fourteenth Amendment, as indicated above, was to reinforce Congress's authority to pass the Civil Rights Act of 1866. Accordingly, Congress in 1870 relied on Section 5 to reenact that law. Congress also relied on Section 5 to pass a number of other civil rights statutes during the Reconstruction era. Of particular significance, the Ku Klux Klan Act of 1871 banned conspiracies to deprive individuals of equal protection of the law, and the Civil Rights Act of 1875 banned discrimination based on race in inns, public conveyances, theaters, and other public amusements.

During the later stages of Reconstruction, a majority of the US Supreme Court narrowly interpreted Congress's powers based on the Fourteenth Amendment and invalidated many of the most important provisions in these laws. In the first case involving this amendment, Slaughter-House Cases, 83 U.S. 36 ( 1873 ), the Court treated Section 1's limits as relatively narrow and suggested that Congress's authority based on Section 5 was correspondingly limited. The Court also invalidated the enforcement of the 1870, 1871, and 1875 civil rights laws in United States v. Cruikshank, 92 U.S. 542 ( 1876 ), United States v. Harris, 106 U.S. 629 ( 1883 ), and Civil Rights Cases, 109 U.S. 3 ( 1883 ). Of particular significance was the Court's holding that Section 5 did not allow Congress to regulate the purely “private” actions of ordinary citizens as distinct from remedying “state action” by government officials in violation of Section 1 of the amendment.

Not surprisingly in light of these and later restrictive precedents, Congress relied on its Article I commerce power to enact modern civil rights legislation instead of relying solely on Section 5. In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 ( 1964 ), and Katzenbach v. McClung, 379 U.S. 294 ( 1964 ), the Court upheld provisions in the Civil Rights Act of 1964 that banned discrimination in hotels, motels, and restaurants. Significantly, the majority based these rulings on Article I's commerce clause rather than Section 5. Then in Katzenbach v. Morgan, 384 U.S. 641 ( 1966 ), a case that did involve “state action,” the Court upheld key provisions in the Voting Rights Act of 1965, relying in that case on Section 5 of the Fourteenth Amendment.

More recently, the Supreme Court in United States v. Morrison, 529 U.S. 598 ( 2000 ), ruled that Congress did not have the power, based on either the commerce clause or Sections 1 and 5 of the Fourteenth Amendment, to allow one ordinary citizen to sue another for sexual violence. Among the most hotly contested issues in that case, as with earlier ones, was what types or forms of state action or neglect, if any, must be present to establish congressional authority based on Sections 1 and 5 of the Fourteenth Amendment. In a number of other important cases, a majority of the Court has also denied that Congress may use its Section 5 power, along with Section 1, to secure rights beyond those that judges have interpreted as protected by Section 1. For example, the Court invalidated efforts by Congress to protect religious liberties and rights of disabled persons from governmental acts that the Court held were not in violation of Section 1. These rulings remain controversial.

LEGACIES OF THE FOURTEENTH AMENDMENT

The Fourteenth Amendment followed in the wake of the Thirteenth's abolition of slavery. The overarching purpose of the Fourteenth Amendment was to provide greater security in the US Constitution for fundamental rights of citizenship and personhood. No other part of the Constitution has been at the center of more constitutional change or controversy than this amendment.

BIBLIOGRAPHY

Ackerman, Bruce A. We the People: Transformations. Cambridge, MA: Belknap Press of Harvard University Press, 1998.

Benedict, Michael Les. A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869. New York: Norton, 1974.

Brandwein, Pamela. Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth. Durham, NC: Duke University Press, 1999.

Brandwein, Pamela. Rethinking the Judicial Settlement of Reconstruction. Cambridge, UK: Cambridge University Press, 2011.

Foner, Eric. Reconstruction: America's Unfinished Revolution, 1863–1877. New York: Harper and Row, 1988.

Gillman, Howard. “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891.” American Political Science Review 96, no. 3 (2002): 511–24.

Kaczorowski, Robert J. The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866– 1876. New York: Fordham University Press, 2005.

McKitrick, Eric L. Andrew Johnson and Reconstruction. Chicago: University of Chicago Press, 1960.

Moore, Wayne D. “(Re) Construction of Constitutional Authority and Meaning: The Fourteenth Amendment and Slaughter-House Cases.” In The Supreme Court and American Political Development, edited by Ronald Kahn and Ken. I. Kersch, 229–74. Lawrence: University Press of Kansas, 2006.

Nelson, William Edward. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, MA: Harvard University Press, 1988.

Post, Robert C., and Reva B. Segal. “Protecting the Constitution from the People: Juriscentric Restrictions on Section Five Power.” Indiana Law Journal 78 (2003): 1–45.

Rotunda, Ronald D. “The Powers of Congress under Section 5 of the Fourteenth Amendment after City of Boerne v. Flores.Indiana Law Review 32, no. 1 (1998): 163–91.

Zuckerman, George David. “A Consideration of the History and Present Status of Section 2 of the Fourteenth Amendment.” Fordham Law Review 30 (1961): 93–136.

Zuckert, Michael P. “Congressional Power under the Fourteenth Amendment: The Original Understanding of Section Five.” Constitutional Commentary 3, no. 1 (1986): 123–56.

Wayne D. Moore
Virginia Tech

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Gale Document Number: GALE|CX3629100268