Fourteenth Amendment to the United States Constitution

Section 1: Citizenship and civil rights

Background

Section 1 of the Fourteenth Amendment formally defines United States citizenship and protects various civil rights from being abridged or denied by any state law or state action. In Shelley v. Kraemer (1948), the Supreme Court held that the Fourteenth Amendment's historical context of countering the discriminatory Black Codes of southern states must be used in its interpretation. Primarily written by Representative John Bingham, Section 1 is the most frequently litigated part of the amendment, and this amendment is the most frequently litigated part of the Constitution.

Citizenship Clause

The Citizenship Clause overruled the Supreme Court's Dred Scott decision that African Americans could not become citizens. The clause constitutionalized the Civil Rights Act of 1866's grant of citizenship to all born within the United States, except the children of foreign diplomats. Compared against European jus sanguinis laws that assign citizenship by one's parents, historians have framed the United States' Citizenship Clause as an extension of the Fourteenth Amendment's egalitarian principles.

Congress's debate over the Citizenship Clause shows explicit rejection of Senator Edgar Cowan's anti-Romani sentiment, affirming that birthright citizenship cannot be revoked from children born to disfavored ethnic minorities. Birthright citizenship was meant to repudiate the American Colonization Society's repatriation of freeborn people of color and emancipated slaves to Africa. In United States v. Wong Kim Ark (1898), the Supreme Court confirmed that children born in the United States receive birthright citizenship, regardless of whether their parents are non-citizen immigrants.

In Elk v. Wilkins (1884), the Supreme Court interpreted the Citizenship Clause as granting birthright citizenship to all born within the jurisdiction of the United States and allowing Congress to establish alternative pathways for naturalization. Consistent with the views of the clause's author, Senator Jacob M. Howard, the Supreme Court held that because Indian reservations are not under the federal government's jurisdiction, Native Americans born on such land are not entitled to birthright citizenship. The 1887 Dawes Act offered citizenship to Native Americans who accepted private property as part of cultural assimilation, while the 1924 Indian Citizenship Act offered citizenship to all Native Americans born within the nation's territorial limits.

In Mackenzie v. Hare (1915), the Supreme Court upheld the Expatriation Act of 1907, which dictated that all American women who voluntarily married a foreign alien renounced their American citizenship. Perez v. Brownell (1958) similarly held that Congress could designate voting in foreign elections or draft evasion as renunciations of citizenship. However, in Afroyim v. Rusk (1967) and Vance v. Terrazas (1980), the Supreme Court reversed itself, holding that renunciations of American citizenship must be formally expressed. In Rogers v. Bellei (1971), the Supreme Court distinguished between citizenship conferred by the Fourteenth Amendment and citizenship conferred by Article I, holding that a person who did not acquire citizenship by jus soli or by naturalization, but instead acquired citizenship at birth abroad through jus sanguinis, could later be involuntarily expatriated.

Privileges or Immunities Clause

The Privileges or Immunities Clause was written to provide congressional power of enforcement to the similar Privileges and Immunities Clause of Article Four of the Constitution. In 1823, Justice Bushrod Washington decided Corfield v. Coryell, interpreting the latter clause as protecting the right to travel, seek habeas corpus, and hold property in multiple states, among other rights. In the Slaughter-House Cases (1873), the Supreme Court rejected arguments that the Privileges or Immunities Clause further incorporated the Bill of Rights against state governments or transferred police power to the federal government. In McDonald v. City of Chicago (2010) and Timbs v. Indiana (2019), Justice Clarence Thomas advocated moving the incorporation doctrine from substantive due process, which he called a 'legal fiction', to the Privileges or Immunities Clause.

Due Process Clause

The Due Process Clause of the Fourteenth Amendment explicitly applies the Fifth Amendment's similar clause to state governments. This reinforcement of due process rights was in response to the Fugitive Slave Act of 1850 allowing slave owners to recapture their fugitive slaves "without process" and rejecting the testimony of alleged fugitives. In protecting all people against arbitrary denial of life, liberty, or property, courts have recognized both procedural and substantive due process. Procedural due process deals with the processes for restraining life, liberty, or property, such as the right to be notified of a hearing by a neutral decision-maker. In comparison, substantive due process involves the government's justification for engaging in those processes.

In deciding whether legislation unconstitutionally infringes on one's liberty, most government acts are subject to rational basis review, under which the government must present a legitimate state interest and the law must be rationally related to advancing that interest. When the government infringes on fundamental rights, such as racial equality, strict scrutiny requires its actions to instead be narrowly tailored to address a compelling state interest.

The early 20th century has been referred to as the Lochner era for the Supreme Court's embrace of a freedom of contract in cases like Allgeyer v. Louisiana (1897) and Lochner v. New York (1905). While that freedom was ultimately curtailed in West Coast Hotel Co. v. Parrish (1937), those early cases recognized substantive due process rights within the Due Process Clause. For example, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) struck down anti-immigrant state education laws as violations of substantive due process.

In 1890, future Supreme Court Justice Louis Brandeis and his law partner, Samuel D. Warren II, published "The Right to Privacy" in the Harvard Law Review. While the article only advocated for tort actions to protect one's privacy, the Supreme Court later elevated privacy to a fundamental right, protecting contraceptive sales in Griswold v. Connecticut (1965), consensual sex in Lawrence v. Texas (2003), and same-sex marriage in Obergefell v. Hodges under substantive due process. In Roe v. Wade (1973), the Supreme Court recognized a substantive due process right to abortion, but that holding was overturned in Dobbs v. Jackson Women's Health Organization (2022), which stated that "a right to abortion is not deeply rooted in the Nation's history and traditions."

Equal Protection Clause

The Equal Protection Clause was written to constitutionalize the anti-discrimination principles of the Civil Rights Act of 1866 and prevent enforcement of the southern states' Black Codes. In Strauder v. West Virginia (1880), the Supreme Court recognized exclusion of African Americans from West Virginian juries as an unconstitutional infringement of this clause, triggering the 1866 law's provision to remove the underlying case to federal court. In Yick Wo v. Hopkins (1886), the Supreme Court clarified that race-neutral laws administered in discriminatory ways were similarly unconstitutional.

Whereas the Privileges or Immunities Clause refers to citizens, this clause refers to all people within the jurisdiction of the United States. Accordingly, in Plyler v. Doe (1982), the Supreme Court prohibited state governments from restricting public education on the basis of a child's immigration status. In that decision, Justice William J. Brennan Jr. noted that in Wong Wing v. United States (1896), the Supreme Court had already recognized illegal immigrants as within American jurisdiction for the purposes of due process rights.

While the Fourteenth Amendment's Due Process Clause incorporates the Bill of Rights against state governments, the Fifth Amendment's similar clause has been used for reverse incorporation of the Equal Protection Clause against the federal government. In Bolling v. Sharpe (1954), the Supreme Court used this doctrine to prevent the federal government from maintaining segregated public schools in Washington, D.C.

While states can vary taxation by the taxpayer's profession or form of their property, the Equal Protection Clause restrains the government from engaging in discriminatory tax assessment. Additionally, in Metropolitan Life Insurance Co. v. Ward (1985), the Supreme Court treated the Equal Protection Clause as affirming the Dormant Commerce Clause doctrine against state protectionism. In Santa Clara County v. Southern Pacific Railroad Co. (1886), Supreme Court Reporter of Decisions Bancroft Davis affirmed corporate personhood in the decision's headnote without full discussion by the court. In Minneapolis & St. Louis Railway Co. v. Beckwith (1889), the Supreme Court fully embraced this treatment of businesses as people.

In Plessy v. Ferguson (1896), the Supreme Court held that racial segregation laws did not violate the Equal Protection Clause, and in Cumming v. Richmond County Board of Education (1899), it applied its "separate but equal" doctrine to uphold racial segregation in public schools. Through civil rights litigation, groups like the NAACP weakened this doctrine, culminating in Brown v. Board of Education (1954) holding segregated facilities to be inherently unequal. The ruling was met with "massive resistance" in southern states, leading state and federal courts to overturn many segregationist state laws.

State actor doctrine

The Eleventh Amendment provides state governments with sovereign immunity from federal lawsuits brought by citizens of other states, and in Hans v. Louisiana (1890), the Supreme Court held that it implies immunity from all lawsuits brought by private parties. In Fitzpatrick v. Bitzer (1976), the Supreme Court determined that Section 5 of the Fourteenth Amendment's congressional power of enforcement allows the federal government to limit state sovereign immunity.

Furthermore, in Ex parte Young (1908), the Supreme Court held that private individuals could seek federal injunctions against state officials to prevent enforcement of unconstitutional laws, reasoning that unconstitutional conduct can never be a protected state action. Similarly, in Shelley v. Kraemer (1948), the Supreme Court held that while the federal government cannot prevent private parties from establishing racially discriminatory housing covenants, state and federal courts cannot enforce them.

In cases like Jackson v. Metropolitan Edison Co. (1974) and Flagg Bros., Inc. v. Brooks (1978), the Supreme Court clarified that state laws do not transform regulated businesses into state actors. Thus, private companies are free to engage in conduct that would be unconstitutional for state governments to pursue, though the federal government can prevent discriminatory private conduct under its Commerce Clause authority, and state governments may further regulate business operations.

Section 2: Apportionment of representatives

Under the Enumeration Clause of Article I, the size of state delegations to the House of Representatives was apportioned by adding their free populations with three-fifths of their enslaved populations. After the Thirteenth Amendment abolished slavery except as criminal punishment, Congress wrote Section 2 to reduce state representation based on the proportion of their male citizens aged 21 years or older that were denied voting rights. Since only two of the eleven referendums on African American suffrage held in northern states between 1865 and 1869 were successful, Congress assumed that the states would not ratify a nationwide grant of such voting rights. The Senate also rejected a House proposal ordering "that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation" because it would have permitted race-neutral discrimination.

Southern states ignored this penalty, and Congress declined to enforce it, prompting the 1870 ratification of the Fifteenth Amendment to explicitly prohibit denial of voting rights "on account of race, color, or previous condition of servitude." Legal scholar Gabriel J. Chin has argued this repealed Section 2 to provide self-executing voting rights, but David Froomkin and Eric Eisner rebut that Section 2 still addresses other voting restrictions. For example, it is unsettled whether Section 2 penalizes states for sending delegations to the Electoral College that contravene their election results.

In Saunders v. Wilkins (1945), the Court of Appeals for the Fourth Circuit dismissed whether Virginia's poll tax constituted a restriction of voting rights under Section 2 as a political question, which has been criticized because in 1872, Congress enacted a broad enabling statute under its Section 5 congressional power of enforcement (2 U.S.C. § 6). Interest in enforcing Section 2 further declined after the Voting Rights Act of 1965 prohibited racial discrimination in voting.

In Minor v. Happersett (1875), the Supreme Court rejected voting as among rights protected by the Privileges or Immunities Clause because Section 2 shows that the Fourteenth Amendment only recognizes the voting rights of male citizens aged 21 years or older. Representative James G. Blaine had defeated proposals for Section 2 to base representation on each state's voting population by warning that it would incentivize voting rights for women. Suffragettes condemned Section 2 and secured ratification of the Nineteenth Amendment in 1920 to prohibit sex-based denial of voting rights.

Section 3: Disqualification from office for insurrection or rebellion

The Insurrection Clause disqualifies candidates for state or federal offices if they previously took an oath to support the Constitution when sworn into a public office but then engaged in insurrection or rebellion against the United States. Prior to the Fourteenth Amendment's adoption, Congress could only disqualify federal officials through impeachment and removal proceedings, as it did for Tennessee District Court Judge West Hughes Humphreys in 1862, and it held no authority over state offices. When Alexander H. Stephens, the former Vice President of the Confederate States of America, was elected to represent Georgia as a Senator in the 39th US Congress, the Republican-dominated Congress blocked him from taking office. To address the process of readmitting Confederate states, Congress established the Joint Committee on Reconstruction, whose work expanded beyond this clause to the overall Fourteenth Amendment.

Using Section 5 of the Fourteenth Amendment's congressional power of enforcement, the Enforcement Act of 1870 authorized federal prosecutors to issue writs of quo warranto to remove those disqualified by the Insurrection Clause from their political offices. In 1942, Congress's revisions of the US Code eliminated that provision. However, a section of the Confiscation Act of 1862 (18 U.S.C. § 2383), which precedes the Fourteenth Amendment, continues to disqualify anyone who "incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States."

Finding that it had severely underestimated those affected by Section 3, Congress exercised its authority to remove a disqualification with a two-thirds majority in each chamber by passing the Amnesty Act in 1872. This law exempted all Confederates except former Senators, Representatives, federal judges, military officers, cabinet officials, and ambassadors. In 1898, Congress exempted all people then living and disqualified by Section 3, but the Insurrection Clause continues to disqualify those who engage in subsequent insurrection or rebellion. During the 1970s, Congress posthumously lifted the disqualification of Confederate General-in-Chief Robert E. Lee and President Jefferson Davis, both of whom died before the 1898 amnesty.

In the only invocation of Section 3 between Reconstruction and 2021, Congress deemed Victor L. Berger disqualified by his conviction under the Espionage Act of 1917 and refused to seat him for the 66th US Congress. After that conviction was overturned based on judicial bias in Berger v. United States (1921), Berger represented Wisconsin's 5th congressional district for three terms.

Section 4: Validity of public debt

Section 4 legitimizes all public debt appropriated by the Congress while rejecting debt associated with emancipation and the Confederacy. In the Gold Clause Cases, the Supreme Court held that Congress's authority over monetary policy allowed it to pass the Emergency Banking Act of 1933, despite the law's practical effect of invalidating gold clauses, which allowed creditors to demand payment in gold. In the 21st century, constitutional law scholars have debated whether Section 4 authorizes the President to unilaterally raise the debt ceiling when Congress is unwilling. In 2011, former President Bill Clinton argued that Section 4 requires the Executive Branch to ignore the debt ceiling in its fulfillment of congressional appropriations.

Section 5: Power of enforcement

In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the Supreme Court opined that Section 5 empowered Congress to enforce the Equal Protection Clause on states that refused to repeal their Black Codes. However, the Civil Rights Cases (1883) held that the Fourteenth Amendment does not empower Congress to outlaw racial discrimination by private individuals. In Heart of Atlanta Motel, Inc. v. United States (1964), the Supreme Court upheld similar legislation under the Commerce Clause instead.

In Katzenbach v. Morgan (1966), the Supreme Court upheld Voting Rights Act of 1965's elimination of literacy tests by claiming that Congress could expand civil rights further than the judiciary. However, City of Boerne v. Flores (1997) rejected application of the Religious Freedom Restoration Act on state governments because it modified rights under the Free Exercise Clause, rather than protecting existing rights.

Selected Supreme Court cases

Felon disenfranchisement

1974: Richardson v. Ramirez

1985: Hunter v. Underwood

Adoption

Proposal by Congress

In the final years of the American Civil War and subsequent Reconstruction era, Congress repeatedly debated the rights of former slaves freed by the 1863 Emancipation Proclamation and the 1865 Thirteenth Amendment, the latter of which formally abolished slavery. Concerned that southern states would use their African American residents to enlarge their congressional representation while infringing on the civil rights of these freedmen, Republicans sought to discourage such disenfranchisement.

The Civil Rights Act of 1866 guaranteed citizenship without regard to race, color, or prior enslavement. The bill also guaranteed equal benefits and access to the law, attacking the discriminatory Black Codes passed by formerly Confederate states to restrict the movement, employment, self-defense, and legal rights of African Americans. Ignoring the urging of moderate Republicans, President Andrew Johnson vetoed the bill on March 27, 1866. In his veto message, Johnson framed the expansion of citizenship to African Americans as racial discrimination for leaving eleven southern states without congressional representation. He further compared that "large numbers of intelligent, worthy, and patriotic foreigners" were forced to wait for naturalization. Three weeks later, Johnson's veto was overridden and the measure became law. Unsure of their constitutional power to pass and enforce the law, especially if Southern Democrats retook Congress, the experience prompted drafting for a constitutional amendment to protect these civil rights.

More than seventy proposals for an amendment were drafted. In an extensive appendix to his dissenting opinion in Adamson v. California (1947), Justice Hugo Black detailed statements made by "those who framed, advocated, and adopted the Amendment." In late 1865, the Joint Committee on Reconstruction proposed an amendment where states would only receive representation for their citizens with voting rights. This amendment passed the House, but it was blocked in the Senate by a coalition of Radical Republicans led by Charles Sumner, who considered the proposal a "compromise with wrong," and Democrats opposed to black rights. Consideration turned to an amendment by Representative John A. Bingham of Ohio, enabling Congress to safeguard "equal protection of life, liberty, and property" of all citizens, but this proposal failed in the House.

In April 1866, the Joint Committee forwarded a third version to Congress, which combined the prior proposals, rejected Confederate debt, and addressed voting by ex-Confederates. Social reformer Robert Dale Owen led the decision to combine the proposals into the constitution's longest amendment, reasoning that its popular provisions would secure its overall ratification. On May 29, 1866, the House passed this third version as House Resolution 127. The Senate amended Sections 2, 3, and 4, passing the modified version on June 8 by a 33–11 vote (five not voting). The House agreed to the Senate amendments on June 13 by a 138–36 vote (ten not voting). A concurrent resolution requesting the President to transmit the proposal to state governors was passed by both houses of Congress on June 18.

Ratification by the states

On June 16, 1866, Secretary of State William H. Seward transmitted the Fourteenth Amendment to state governors for ratification. After state legislatures in every formerly Confederate state except Tennessee refused to ratify it, Congress passed the Reconstruction Acts, which conditioned readmission on ratification. The first 28 states to ratify the Fourteenth Amendment were:

Connecticut: June 30, 1866

New Hampshire: July 6, 1866

Tennessee: July 19, 1866

New Jersey: September 11, 1866 (rescinded ratification February 20, 1868/March 24, 1868; re-ratified April 23, 2003)

Oregon: September 19, 1866 (rescinded ratification October 16, 1868; re-ratified April 25, 1973)

Vermont: October 30, 1866

New York: January 10, 1867

Ohio: January 11, 1867 (rescinded ratification January 13, 1868; re-ratified March 12, 2003)

Illinois: January 15, 1867

West Virginia: January 16, 1867

Michigan: January 16, 1867

Minnesota: January 16, 1867

Kansas: January 17, 1867

Maine: January 19, 1867

Nevada: January 22, 1867

Indiana: January 23, 1867

Missouri: January 25, 1867

Proposed revision

In response to President Franklin D. Roosevelt's Judicial Procedures Reform Bill of 1937, Senator William Borah proposed a constitutional amendment that would repeal and revise the Fourteenth Amendment, analogous to the 1933 Twenty-First Amendment modifying the Eighteenth Amendment. Borah's amendment would have excluded substantive due process rights, explicitly incorporated the First Amendment against state governments, eliminated the Section 2 penalty for denied voting rights, and omitted Sections 3 and 4. In March 1937, the switch in time that saved nine ended the Lochner era, diminishing interest in either of these judicial reforms.