FOURTEENTH AMENDMENT

The Fourteenth Amendment to the U. S. Constitution reads:

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."

The Fourteenth Amendment, ratified in 1868, has generated more lawsuits than any other provision of the U.S. Constitution. Section 1 of the amendment has been the centerpiece of most of this litigation. It makes "All persons born or naturalized in the United States"citizens of the United States and citizens of the state in which they reside. This section also prohibits state governments from denying persons within their jurisdiction the privileges or immunities of U.S. citizenship, and guarantees to every such person due process and equal protection of the laws. The Supreme Court has ruled that any state law that abridges freedom of speech, freedom of religion, the right to trial by jury, the right to counsel, the right againstself-incrimination, the right against unreasonable searches and seizures, or the right against cruel and unusual punishments will be invalidated under section 1 of the Fourteenth Amendment. This holding is called the incorporation doctrine.

Sections 2 to 5 have been the subject of far fewer lawsuits. Some of these sections seem anachronistic today because they reflect the immediate concerns of the Union's political leadership following the North's victory over the South in the Civil War (1861–65). Section 2, for example, penalized any state that attempted to abridge the voting rights of its black male residents by reducing the state's representation in Congress (no female resident of any race was afforded the constitutional right to vote in the United States until 1920). Section 3 prohibited from holding state or federal office any person who engaged in "insurrection or rebellion" or otherwise gave "aid or comfort to the enemies" during the Civil War. Section 4 reaffirmed the United States' commitment to pay its Civil War debt, while declaring all debts and obligations incurred by the Confederate government "illegal and void." Section 5 enabled, and continues to enable, Congress to pass "appropriate legislation" to enforce the provisions of the Fourteenth Amendment.

The Fourteenth Amendment was drafted to alleviate several concerns harbored by many U.S. citizens prior to its ratification. The most obvious concern related to the status of the recently freed slaves. Five years before hostilities commenced in the Civil War, the Supreme Court declared that people of African descent living in the United States were not "citizens" of the United States, but merely members of a "subordinate and inferior class of human beings" deserving no constitutional protection whatsoever (dred scott v. sandford, 60 U.S. [19 How.] 393, 15 L. Ed. 691 [1856]). The Fourteenth Amendment vitiated the Supreme Court's holding in Dred Scott by making all blacks "born or naturalized in the United States" full-fledged citizens entitled to the same constitutional rights provided for every other U.S. citizen.

The racist attitudes expressed in Dred Scott also manifested themselves after the Civil War. In 1865, the southern states began enacting the black codes, which deprived African Americans of many basic rights afforded to white Americans, including the right to travel, bear arms, own property, make contracts, peaceably assemble, and testify in court. The Black Codes also authorized more severe punishments for African Americans than would be imposed on white persons for committing the same criminal offense. The Fourteenth Amendment offered an antidote to these discriminatory laws by guaranteeing to members of all races "due process of law," which requires the legal system to provide fundamentally fair trial procedures, and "equal protection of the laws," which requires the government to treat all persons with equal concern and respect.

Dred Scott was not the only Supreme Court decision that influenced the framers of the Fourteenth Amendment. Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833), also played a significant role. This case involved a Maryland wharf owner who brought a lawsuit against the city of Baltimore for violating the Fifth Amendment's eminent domain clause, which prohibits the government from taking private property without "just compensation." Baltimore defended against the wharf owner's lawsuit by arguing that the fifth amendment only provides relief against action taken by the federal government and offers no protection against state governments or their political subdivisions. The Supreme Court agreed with Baltimore.

Writing for the Court, Chief Justice john marshall asserted that the Constitution created the federal government, and the provisions of the Constitution were designed to regulate the activity of the federal government. The people of each state enacted their own constitution, Marshall contended, to regulate the activities of their state and local governments. Thus, Marshall reasoned that the U.S. Constitution operates only as a limitation on the powers of the federal government, unless one of its provisions expressly restricts the powers of state governments, as does Article I, Section 10.

Article I, Section 10, provides that "[n]o State shall enter into any Treaty, Alliance, or Confederation," or "pass any Bill of Attainder, ex post facto law, or Law impairing the Obligation of Contracts." This wording, Marshall maintained, demonstrates that the Framers understood the type of clear and unequivocal language that must be used to make a provision of the federal Constitution binding on the states. Because the first eight amendments to the Constitution do not contain language that restricts the powers of state governments, Marshall concluded that the bill of rights was inapplicable to the states.

The Supreme Court's decision in Barron weighed heavily on the mind of john bingham, the Republican representative from Ohio who was the primary architect of Section 1 of the Fourteenth Amendment. Bingham said he "noted … certain words in the opinion of Marshall" when he was "reexamining that case of Barron." The chief justice, Bingham stressed, denied the wharf owner's claim because the Framers of the Bill of Rights, unlike the Framers of Article I, Section 10, had not chosen the type of explicit language that would clearly make the Bill of Rights applicable to state governments. "Acting upon" Marshall's "suggestion" in Barron, Bingham said, he "imitated"the Framers of Article I, Section 10:"As [these Framers had written] 'no state shall … pass any Bill of Attainder …' I prepared the provision of the first section of the fourteenth amendment."

Bingham's remarks shed light on the Supreme Court's decision to make most of the provisions contained in the Bill of Rights applicable to state governments through the doctrine of incorporation. Under this doctrine, the Supreme Court has ruled that every protection contained in the Bill of Rights—except for the right to bear arms, the right to indictment by grand jury, the right to trial by jury in civil cases, and the right against quartering soldiers—must be protected by state governments under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

The Supreme Court has explained that each of these incorporated rights is "deeply rooted in the nation's history" and "fundamental" to the concept of "ordered liberty" represented by the Due Process Clause (Palko v. Connecticut, 302U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]). Any state that denies one of these rights is violating its duty to provide the "equal protection of the laws" guaranteed to the residents of every state by the Fourteenth Amendment.

Although a state may provide more constitutional protection to its residents than is conferred by the Bill of Rights, the Fourteenth Amendment prohibits any state from providing less protection. For example, the Supreme Court upheld the constitutionality of sobriety checkpoints, which authorize police officers to stop motor vehicles to determine if the driver has been consuming alcohol, regardless of whether the stop was based on probable cause or made pursuant to a search warrant as required by the fourth amendment (Michigan v. Sitz, 496U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412[1990]). The Minnesota Supreme Court reached the opposite conclusion, invalidating arrests made during traffic stops at sobriety checkpoints because they did not comport with the state's constitutional provisions prohibiting unreasonable searches and seizures (Ascher v. Commissioner of Public Safety, 519 N.W.2d 183 [Minn. 1993]).

Whereas the Due Process and Equal Protection Clauses have given rise to a panorama of legal claims such as the sobriety checkpoint cases, the privileges and immunities clause has produced only a few lawsuits since the end of the 1800s. Like most other legal terms in the Bill of Rights, the phrase privileges or immunities is not defined in the Constitution. Nor does the phrase possess a meaning that is self-evident. However, some insight into the meaning of the Privileges and Immunities Clause may be gleaned from statements made by the man who drafted it, Congressman Bingham.

Bingham said the "privileges and immunities of citizens of the United States … are chiefly defined in the first eight amendments to the Constitution of the United States… . These eightarticles … never were limitations upon the power of the states until made so by the Fourteenth Amendment" (quoted in Adamson v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903[1947] [Murphy, J., dissenting]). Senator Jacob Howard echoed these thoughts, stating that "these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—[include] … personal rights … such as the freedom of speech and of the press, [and] the right of the people to peaceably assemble and petition the government for redress of grievances." Similarly, Representative james wilson made it clear that the "privileges and immunities of the citizens of the United States" include "[f]reedom of religious opinion" and "freedom of speech and press."

Notwithstanding the statements made by these congressmen, the Supreme Court has limited the application of the Fourteenth Amendment's Privileges and Immunities Clause to provide only negligible protection against the state and federal governments. In the slaughter-house cases, 83 U.S. (16 Wall.) 16, 21 L. Ed. 268 (1873), a group of New Orleans butchers brought a lawsuit to invalidate a Louisiana law that granted a monopoly to a local slaughterhouse. The butchers alleged that the state-chartered monopoly violated their "privileges and immunities" to pursue gainful employment free from unlawful restraints.

In an extremely narrow reading of the Fourteenth Amendment, the Supreme Court rejected the butchers' argument. The Court held that the Privileges and Immunities Clause protects only rights derived from U.S. citizenship, such as the right to habeas corpus and interstate travel and not rights derived from state law, such as the common-law rights of tort and property asserted by the New Orleans butchers. The Supreme Court has neither overruled its decision in the Slaughter-House cases nor expanded its narrow interpretation of the Privileges and Immunities Clause. Most constitutional scholars have since pronounced this clause a dead letter.

If the Supreme Court has provided a more conservative interpretation of the Privileges and Immunities Clause than envisioned by the Framers of the Fourteenth Amendment, it has provided a more liberal interpretation of the Equal Protection Clause. In brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court ruled that the doctrine of "separate but equal," in which the black and white races were segregated in public schools and other places of public accommodation, was "inherently unequal" and denied African Americans "equal protection of the laws." The ambit of the Equal Protection Clause was later enlarged by the Supreme Court beyond racial segregation to cover an assortment of gender discrimination claims asserted by women.

The Court made these rulings in spite of evidence that racial segregation was prevalent at the time the Fourteenth Amendment was adopted and that women were treated like second-class citizens during most of the nineteenth century. In 1868, for example, racial segregation of public schools was permitted throughout the South and in eight northern states. The gallery of the U.S. Senate was itself segregated by race during the debate of the Equal Protection Clause. During the first half of the nineteenth century, every state proscribed married women from devising a will, owning or inheriting property, entering into a contract, or exercising almost any other basic civil right afforded to women in the modern United States. Indeed, the common law recognized no existence for married women independent from their husbands. By marriage, the husband and wife became one person in law, and that person was the husband.

Thus, the Framers' original understanding of the Fourteenth Amendment has not provided a useful yardstick to measure the Supreme Court's interpretation of the Due Process and Equal Protection Clauses. Since the mid-1940s, the Supreme Court has strayed further from the Framers' original understanding, recognizing controversial privacy rights to use contraceptives (griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]), obtain abortions prior to the third trimester of pregnancy (roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]), and view obscene pornographic material in the privacy of one's own home (Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 [1969]). In 1996 the Supreme Court held that the Equal Protection Clause had been violated by an amendment to the Colorado constitution prohibiting legislative, judicial, or executive action at the state or local level from protecting homosexual persons from discrimination in romer v. evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996).

The Supreme Court has extended the reach of the Fourteenth Amendment to private actors when they become so entwined with state or local government that they become, in effect, state actors. In Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001), the Court held that a state athletic association was so closely connected with the public schools as to become a state actor. The association sought to curtail the alleged football recruiting abuses of Brentwood Academy, a private school with a very successful football program.

Brentwood Academy sued the association and alleged that it had violated the Fourteenth Amendment. The association was not a part of state government, but the Supreme Court held that the state had delegated authority to regulate school athletic programs to the organization. The Court applied the general principle where there is such a "close nexus between the State and the challenged action," seemingly private behavior "may be fairly treated as that of the State itself."

further readings

Amar, Akhil Reed. 1992. "The Bill of Rights and the Fourteenth Amendment." Yale Law Journal 101.

Curtis, Michael Kent. 1993. "The 1859 Crisis over Hinton Helper's Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment." Chicago-Kent Law Review 68.

Curtis, Michael Kent. 1988. Review of No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights in Harvard Law Review 101.

Rierson, Sandra L."Race and Gender Discrimination: A Historical Case for Equal Treatment Under the Fourteenth Amendment." Duke Journal of Gender Law and Policy 1.

Stone, Lawrence. 1977. The Family, Sex, and Marriage in England 1500–1800. Weidenfeld & Nicolson.

cross-references

Gay and Lesbian Rights.

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

Fourteenth Amendment addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections.

Section 1

Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens of their state of residence; the citizenship of African Americans was thereby established and the effect of the Dred Scott Case was overcome. The section forbids the states to abridge the privileges and immunities of U.S. citizens, to deprive any person of life, liberty, or property without due process of law (a similar provision restraining the federal government is in the Fifth Amendment), and to deny any person the equal protection of the laws.

Section 1 has been used extensively by the U.S. Supreme Court to test the validity of state legislation. The privileges and immunities of citizenship have never been defined by a majority of the court, but some justices have argued that among the activities envisaged are freedom to cross state boundaries and freedom to gather for peaceable discussion of legislation. The court has preferred to base its decisions on the due process and the equal protection clauses, which apply to all persons (the term person was soon applied to corporations as well as human beings) irrespective of citizenship.

Due Process of Law

In the early view of the court, a deprivation of life, liberty, or property simply meant the punishment for crime. The requirements of due process would be met by fair procedure, including notice to the defendant and an open trial with the right to counsel. In time, however, the court concluded that due process was not limited to procedural considerations but had a substantive aspect as well. Thus, even if proper legal procedure were observed, the substantive ground on which a person was deprived of life, liberty, or property might in itself violate due process. The constitutionality of much state legislation was opened to question, and so many laws were attacked that at times about one third of the cases before the Supreme Court dealt with due process. In early due process cases the court did not place limitations on traditional exercises of the police power . The constitutionality of state economic regulation was upheld in such early Fourteenth Amendment precedents as the Slaughterhouse Cases (1873) and Munn v. Illinois (1877). However, subsequent due process interpretations of the Fourteenth Amendment did severely restrain the power of the states to legislate on economic matters.

Equal Protection

The equal protection clause, which was also brought to bear on the economic legislation of the states, was held to invalidate restraints on corporations from which other businesses were exempted. In several early cases this clause was used to foster individual economic rights, with the court striking down state laws that prevented aliens from pursuing certain occupations. However, African Americans who claimed that the discrimination they suffered at the hands of private persons (e.g., exclusion from hotels) denied them the equal protection of law were refused redress by the court, which held that the Fourteenth Amendment was concerned with official state action only. In 1896, in the Plessy v. Ferguson case, the court enunciated the view that the states might provide segregated facilities for African Americans (e.g., in education), so long as they were equal to those afforded white persons: the so-called separate but equal doctrine.

The court substantially maintained the views outlined above until the 1930s, when drastic reinterpretations were made. (For factors producing the change, see Supreme Court, United States .) The court thereafter permitted state legislatures to make economic regulations without regard to the question of whether the businesses concerned were dedicated to the public interest. The states, it was also held, might meet the requirements of equal protection even if distinctions based upon "reasonable classifications" were made. Thus, corporations, with their great potential power and size, might reasonably be subjected to more severe restrictions than other types of business organizations. While the states were given greater freedom in enacting economic legislation, their power to limit personal liberties was brought under greater restraint.

Gradually, the protection afforded by the Bill of Rights against federal actions was almost entirely extended to the states. In a number of decisions, it was held that the provisions of the First Amendment were made applicable to the states by the substantive aspect of the due-process clause, in the so-called incorporation doctrine. Thus, the states, like the federal government, were forbidden to favor or suppress any religious establishment or to deny freedom of speech, of the press, and of peaceable assembly. With the new attitude of the court, the equal protection clause became one of the main weapons of those who were determined that African Americans should enjoy the same rights as other Americans. Although there had been decisions forbidding segregation on interstate transportation and ruling that state courts cannot enforce a restrictive covenant (an agreement that a buyer will not resell to certain categories of persons, e.g., African Americans or Jews), it was not until 1954 that the "separate but equal" doctrine was firmly repudiated (see Brown v. Board of Education of Topeka, Kans. ).

In recent years, the Supreme Court has also used the equal protection clause to invalidate legislation discriminating against women, to order the apportionment of state legislatures on the basis of population alone. The Court has also used the due process clause to extend to the states the protection against limitations on the right of privacy and women's right to an abortion (see Roe v. Wade ). The 1986 case of Bowers v. Hardwick, however, came as a blow to the right of privacy. The Court ruled that individual state antisodomy laws were constitutional, and thus that the right of privacy was not violated by laws criminalizing homosexual acts in those states, but in 2003 the Court reversed itself and voided all antisodomy laws.

Sections 2–5

Section 2 provides for apportionment of membership in the House of Representatives on the basis of the whole state population, excluding Native Americans not taxed. A supplemental provision, intended to protect African-American suffrage but never implemented, allows reduction of the congressional representation of a state if male citizens over 21 years old are forbidden to vote. (The main effective constitutional guarantee of African-American suffrage has been the Fifteenth Amendment (adopted 1870), which forbids the United States or any state to abridge the right to vote on account of race, color, or previous condition of servitude.) Section 3 of the Fourteenth Amendment excludes from political office persons who, having sworn to uphold the U.S. Constitution (e.g., army officers and members of Congress) violate this oath, as in the case of those who aided the Confederacy in the Civil War; Congress can remove this disability by a two-thirds vote of each house. Section 4 confirms the public debt but makes void all claims arising from credit extended to the Confederacy or from the loss of slaves. By Section 5, Congress is empowered to enact legislation enforcing the foregoing sections.

Bibliography

See M. K. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); W. E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Document (1988).

FOURTEENTH AMENDMENT

The Fourteenth Amendment to the U.S. Constitution is a product of the post–Civil War Reconstruction (1865–1877) effort to protect the rights of the former slaves. It is best known for its definition of citizen, which it defined as a person born in the United States or "naturalized" (granted citizenship). It also bestowed on U.S. citizens equal rights under the law. The result was to limit drastically the power of states to define citizenship or to treat their citizens in a discriminatory fashion. Thus, the states were prohibited from denying a person equal protection under the law. The meaning of this development in the long-term debate over federalism versus states' rights was that henceforth the federal government would assume the ultimate responsibility for protecting the civil rights of citizens. As part of this ruling, the Fourteenth Amendment also declared that states must respect every person's right to due process of law.

The Fourteenth Amendment touched on several other matters that had great relevance at the time of the amendment's enactment, although they are less well-known at the close of the twentieth century. One was the provision that reduced the number of representatives and presidential electors apportioned to a state if that state refused to allow any of its male citizens over the age of 21 the right to vote. This language was intended to prevent the former states of the Confederacy from gaining political power as a result of the freeing of the slaves if those states prevented their former slaves from voting. (Under the "three-fifths compromise" in the Constitution, each slave had been counted as three-fifths of a citizen for the purpose of determining the number of congressmen and presidential electors that the states could claim. Now that the slaves were declared free under the Emancipation Proclamation and the Thirteenth Amendment, they each counted as a full citizen. This had the unintended effect (from the standpoint of most of the northern members of Congress) of increasing the political power of the former Confederate states. The Fourteenth Amendment attempted to redress the balance by ruling that if a state were guilty of denying the voting rights of any of its citizens, its entire population of former slaves would now not be counted for the purposes of figuring out the number of presidential electors or representatives that the state could have.

The Fourteenth Amendment also denied former Confederates the right to hold office in federal or state governments. In addition, this amendment established the validity of the country's public debt. It also stated that the United States would not assume responsibility for the debts of the former Confederate government or of the states that had participated on the South's side in the American Civil War (1861–1865). The amendment also stated that the federal government would not compensate former slave owners who had been deprived of their slaves as a result of the war or in accordance with the Thirteenth Amendment.

The Fourteenth Amendment had several unfore-seen consequences. Whereas the Constitution and the Bill of Rights had tried to protect the individual from the power of the federal government, the Fourteenth Amendment sought to protect the individual from the power of the state. Yet it was purposely vague on some crucial matters. One was the question of African Americans in the North. There were enough congressmen who thought that something should be done to protect the ex-slaves in the South, but who feared to offend white supremacy in the North. They spoke in generalities about reducing the total apportionment of representatives and presidential electors if the state violated the voting right of male citizens. The result was that several northern states still denied the right to vote to their African American residents because there were so few African Americans in the North that the penalty was negligible. The language was, however, gender-specific and implicitly denied the vote to women, a fact that attracted the attention of feminist activists.

The most ironic consequence of the Fourteenth Amendment was that throughout the later years of the nineteenth century it was invoked more often in defense of corporate America than in defense of black America. The railroad companies' trial lawyers, for instance, convinced the courts that the Fourteenth Amendment's clause that no state "shall deprive any person of life, liberty, or property, without due process of law. . ." could be invoked to protect the corporations, which, they argued, were legally "persons," against the regulation of the industry on the state level.

Just as the language banning "restraint of trade" in the Sherman Anti-Trust Act of 1890 was most frequently used against picket lines and strikes rather than against monopolies, the Fourteenth Amendment's language was often used by corporate lawyers to protect the emerging post–Civil War concentrations of economic power.

Topic overview

All persons born or naturalized in the United States are subject to the jurisdiction thereof, are citizens of the United States and 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.

fourteenth amendment, u.s. constitution

See also: Sherman Anti-Trust Act, Thirteenth Amendment

FURTHER READING

Berger, Raoul. The Fourteenth Amendment and the Bill of Rights. Norman, OK: University of Oklahoma Press, 1989.

Graham, H. J. Everyman's Constitution: Historical Essays on the Fourteenth Amendment, The Conspiracy Theory, and American Constitutionalism. Madison, WI: State Historical Society of Wisconsin, 1968.

James, Joseph B. The Framing of the Fourteenth Amendment. Urbana, IL: University of Illinois Press, 1956.

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

Ten Broek, Josephus. The Anti-Slavery Origins of the Fourteenth Amendment. Berkeley, CA: University of California Press, 1951.

Fourteenth Amendment (1868), Congress's first attempt to settle the issues of the Civil War and restore the former Confederate states to the Union.The first of the amendment's five sections defined state and national citizenship, reversing the ruling in Scott v. Sandford that African Americans were not citizens of the United States. It also forbade states to deprive anyone of the rights of citizenship, infringe fundamental rights without due process of law, or deny equal protection of the laws. Other sections reduced the congressional representation of any state that denied voting rights to any class of men, disqualified many former government officials who had supported the Confederacy from holding public office, and guaranteed payment of debts incurred in suppressing the rebellion while barring payment of those incurred in support of it. Since the amendment appeared to sanction voting discrimination against women, some women's rights advocates opposed it. The fifth section authorized Congress to enforce the prior four.

Nearly all the states that had remained loyal to the Union quickly ratified the proposed amendment after Congress submitted it to the states for ratification in June 1866, but all the ex‐Confederate states except Tennessee refused. Congress then passed the Reconstruction Act, which pronounced existing governments in the South provisional until they adopted new constitutions and ratified the amendment. With this prodding, the amendment was ratified on 9 July 1868.

In the decades following, the Supreme Court defined the amendment narrowly in order to maintain a clear distinction between the powers of the federal and state governments. In the Slaughterhouse Cases (1873), the Court distinguished the rights Americans held as state citizens from their rights as U.S. citizens. The Fourteenth Amendment, the Court held, guaranteed only the latter. In the Civil Rights Cases (1883), the Court held that Congress could enforce the amendment only against state actions and could not punish private citizens for violating civil rights. In Plessy v. Ferguson (1896), the Court ruled that racial segregation did not deprive African Americans of equal protection of the law. Other decisions held that the amendment did not require the states to adhere to the protections written into the Bill of Rights.

While the Court narrowed the Fourteenth Amendment's guarantee of civil rights and civil liberties, it took an expansive view of the amendment's protection of property rights. From the 1880s to the later 1930s, in such cases as Lochner v. New York (1905), for example, the court held that the Fourteenth Amendment's due‐process clause protected corporations from governmental regulation of such matters as workers’ wages and working conditions and prices charged for goods and services. In the New Deal Era, when this laissez‐faire interpretation of the Fourteenth Amendment hobbled governmental efforts to deal with the Great Depression, the Court reversed itself and ceased to overthrow economic regulation on constitutional grounds.

After World War II the Supreme Court began to use the equal‐protection clause of the Fourteenth Amendment to strike down state infringements of nonproperty civil rights and to sustain federal laws protecting such rights. Ruling that the Fourteenth Amendment “selectively incorporated” the most important provisions of the Bill of Rights, the court established a national body of rights that states cannot infringe. In Brown v. Board of Education (1954), the Court rejected the Plessy decision, ruling that the equal‐protection clause forbade racial segregation. By expanding the scope of the Fourteenth Amendment, the Supreme Court after the 1930s became a major influence on public‐policy issues relating to civil liberties and civil rights.
See also Constitution; Depressions, Economic; Federalism; Reconstruction; States’ Rights; Woman Suffrage Movement.

Bibliography

Richard C. Cortner , The Supreme Court and the Second Bill of Rights, 1981.
William E. Nelson , The Fourteenth Amendment: From Political Principle to Judicial Doctrine, 1988.

Michael Les Benedict

Fourteenth Amendment (1868) The most important of the three AMERICAN CIVIL WAR and Reconstruction amendments to the US Constitution. Drawn up in 1866 by the Joint Committee of Fifteen, the Fourteenth Amendment extended US citizenship to all persons born or naturalized in the USA (and thus, by including ex-slaves, reversed the DRED SCOTT decision). It also prohibited the states from abridging the privileges and immunities of citizens or depriving any person of life, liberty, or property without due process of law, or denying any person the equal protection of the laws. Another clause reduced the representation in Congress of states that denied the vote to Black people. The Fourteenth Amendment has caused more legal controversy than any other part of the constitution. In the late 19th century, it was used as a device to protect big business from state regulation. In the 20th century it has been the main constitutional instrument of the CIVIL RIGHTS movement and, in recent years, of the women's rights movement. (The Fifteenth Amendment, adopted in 1870, provided that the right to vote should not be denied on grounds of race, colour, or previous condition of servitude.)

Fourteenth Amendment an amendment to the U.S. Constitution, adopted in 1868. Its five sections established the citizenship of African Americans. It also excluded from political office those who aided the Confederacy, and it declared that the U.S. government was not responsible for the debts of the Confederacy or liable for claims arising from the loss of slaves.