Fourteenth Amendment

Fourteenth Amendment With the end of the Civil War and the abolition of slavery by the Thirteenth Amendment (ratified 1865), the Confederate states sought readmission to the Union and to Congress. Under Article I, section 2 of the Constitution, a slave had been counted as three‐fifths of a person for purposes of representation. Because of the abolition of slavery, Southern states expected a substantial increase in their representation in the House of Representatives. The Union, having won the war, feared it might lose the peace.

Reconstruction

In 1865–1866, southern states and localities enacted black Codes to regulate the status and conduct of the newly freed slaves. The codes deprived blacks of many basic rights accorded to whites, including full rights to own property, to testify in court in cases in which whites were parties, to make contracts, to travel, to preach, to assemble, to speak, and to bear arms. To Republicans, the Black Codes were only the latest southern attack on individual rights. Before the war, southern states had suppressed fundamental rights, including free speech and press, in order to protect the institution of slavery. Although the Supreme Court had ruled in 1833 that guarantees of the Bill of Rights did not limit the states (Barron v. Baltimore), many Republicans thought state officials were obligated to respect those guarantees. The Court in Scott v. Sandford (1857) had held that blacks, including free blacks, were not citizens under the Constitution and therefore were entitled to none of the rights and privileges it secured. Republicans also rejected Scott and thought the newly freed slaves should be citizens entitled to all the rights of citizens (See Citizenship).

The Fourteenth Amendment was proposed by Congress in 1866 and ratified by the states in 1868. It reflected Republican determination that southern states should not be readmitted to the Union and Congress without additional guarantees. Section 1 made all persons born within the nation citizens both of the United States and of the states where they resided (thereby reversing Scott) and prohibited states from abridging privileges or immunities of citizens of the United States and from depriving persons of due process of law or equal protection of the laws. Section 2 reduced the representation of any state that deprived a part of its male population of the right to vote, an indirect attempt to protect the voting rights of blacks. Other sections protected the federal war debt, prohibited payment of the Confederate debt, and disabled from holding office those who had sworn to uphold the Constitution but who had engaged in rebellion. Section 5 empowered Congress “to enforce, by appropriate legislation,” the preceding sections.15

Early Interpretation

The first major interpretation of the Fourteenth Amendment's effect came in the Slaughterhouse Cases (1873), in which the Court held that the basic civil rights and liberties of citizens remained under control of state law. The Court limited the privileges and immunities of citizens of the United States referred to in the amendment to relatively narrow rights such as protection on the high seas and the right to travel to and from the nation's capital. The Slaughterhouse Cases drastically curtailed the protection afforded by the amendment against state violations of fundamental guarantees of liberty. One reason for the majority's narrow construction of the amendment was its fear that a more expansive reading would threaten the basic functions of state governments, both by federal judicial action and through enforcement by federal statutes that might displace large areas of state law (See Federalism).

Contrary to the expectations of some of the amendment's framers, the Supreme Court held that it did not overrule Barron v. Baltimore (1833) to require states and local governments to respect the guarantees of the Bill of Rights. The Court also held that because the amendment provided that “no state shall” deprive persons of the rights it guaranteed, Congressional legislation protecting blacks and Republicans from Ku Klux Klan violence exceeded the power of the federal government. In the Civil Rights Cases (1883), the Court nullified provisions of the 1875 Civil Rights Act guaranteeing equal access to public accommodations. It held that the amendment reached only state action, not purely private action.

In Plessy v. Ferguson (1896), the Court held that state‐mandated racial segregation of railway cars did not violate the amendment's Equal Protection Clause (See Segregation, De Jure). In 1908 it upheld a state statute requiring segregation of private colleges (Berea College v. Kentucky). Justice John Marshall Harlan registered eloquent but lonely dissents to the Court's decisions sanctioning state‐imposed segregation. The Court also held, in Bradwell v. Illinois (1873) and Minor v. Happersett (1875), respectively, that the amendment did not protect the right of women to practice law or to vote (See Gender).

Although the Court first embraced a narrow reading of the amendment, it gradually expanded its protection of corporate and property interests. In 1886 the Court declared that a corporation was a “person” for purposes of the Fourteenth Amendment (Santa Clara County v. Southern Pacific Railroad Co.). By 1897 it had begun reading the amendment as protecting freedom of contract, finding in Allgeyer v. Louisiana that a state statute restricting out‐of‐state insurance companies violated due process. In Lochner v. New York (1905), it held that a law limiting bankers to a sixty‐hour week violated the liberty of contract secured by the amendment's Due Process Clause.

Liberty Protections

After the constitutional crisis of 1937 (See Court‐Packing Plan), the Court repudiated its decisions striking down economic regulation. But while the amendment shrank as a protection of economic interests, it grew as a protection of other liberty interests. Much of this modern growth has resulted from extension of the Bill of Rights to the states. Since World War II, the Equal Protection Clause has emerged from obscurity. Under it, the Court has subjected racial discrimination to increasingly strict (usually fatal) scrutiny. In Brown v. Board of Education (1954), the Court found that segregated education denied minority schoolchildren the equal protection of the laws.

In Reynolds v. Sims (1964), the Court ruled that malapportioned state legislative districts also violated the Equal Protection Clause (See Reapportionment Cases). Other discrimination, such as that against aliens, was also subjected to strict judicial scrutiny and struck down (See Alienage and Naturalization). While state legislation restricting fundamental rights is subject to strict judicial scrutiny, economic regulation is usually measured by a more relaxed test that merely requires the court to find some rational purpose for the classification, which it usually does. Discrimination based on sex or illegitimacy has been scrutinized less strictly than discrimination based on race, but more strictly than purely economic regulation.

By a broader reading of what constituted state action, the Court has reached a wide range of action once considered private and therefore outside the protection of the Fourteenth Amendment. In Shelley v. Kraemer (1948), the Court outlawed judicial enforcement of racially restrictive covenants in housing (See Housing Discrimination). In United States v. *Guest (1966), six justices in dicta indicated that congressional power under the Fourteenth Amendment could reach racially motivated private violence.

Another major area of expansion of the Fourteenth Amendment was in the application of the Bill of Rights to the states. As early as 1908, in Twining v. New Jersey, the Court suggested that some Bill of Rights guarantees might limit the states through the Due Process Clause. In Gitlow v. New York (1925), the Court began to apply guarantees of speech, press, assembly, religion, and counsel to the states. The guarantees applied to the states were those the Court considered essential to ordered liberty (Palko v. Connecticut, 1937). A majority of the Court thought that many rights in the Bill of Rights—trial by jury and the privilege against self‐incrimination, for example—did not meet that test. The incorporation of the Bill of Rights accelerated under the Warren Court. By 1969 most Bill of Rights guarantees had been incorporated as limits on state power.

In addition to applying the Bill of Rights to the states, the Court found that other fundamental rights, although not specifically set out in the Constitution, were entitled to protection under the Due Process Clause. These included a right to privacy that embraced the right of married couples to use birth‐control devices (Griswold v. Connecticut, 1965) and the right of women to obtain an abortion (Roe v. Wade, 1973). The abortion decision has been subjected to severe political attack (See also Contraception). Recently, the Court has questioned the rationale of the privacy decisions. In 1986, in Bowers v. Hardwick, the Court held that the right to privacy did not protect consenting adults from prosecution for homosexual conduct under state sodomy laws (See Homosexuality). The decision criticized prior privacy cases as having “little or no textual support in the constitutional language” and suggested that they were of questionable legitimacy (p. 191).

By 1968 the Warren Court's decisions, particularly in areas of criminal procedure, provoked political criticism. President Richard Nixon's appointees to the Court, followed by those of Presidents Ronald Reagan and George H. W. Bush, have espoused a narrower view of guarantees of liberty, particularly as they affect the rights of the accused. So the Fourteenth Amendment remains, as it has been through most of its history, a center of controversy, and it continues both to mirror and to shape changes in American society.

See also Guarantee Clause; Race and Racism; Reconstruction; Speech and the Press.

Bibliography

Michael Kent Curtis , No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).
William E. Nelson , The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1988).
Laurence H. Tribe , American Constitutional Law, 2d ed. (1988).

Michael Kent Curtis