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The Fourteenth Amendment (Amendment XIV) to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments on July 9, 1868.The amendment provides a broad definition of citizenship, overruling the decision in Dred Scott v. Sandford (1857), which had excluded slaves, and their descendants, from possessing Constitutional rights; this was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been used to apply most of the Bill of Rights to the states. This clause has also been used to recognize: (1) substantive due process rights, such as parental and marriage rights; and (2) procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away. The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions. The amendment also includes a number of clauses dealing with the Confederacy and its officials.

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Citizenship and civil rights

Background

Section 1, arguably the most far-reaching section of the Fourteenth Amendment, formally defines citizenship and protects a person's civil and political rights from being abridged or denied by any state. This represented the Congress's reversal of that portion of the Dred Scott decision which ruled that black people were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. The Civil Rights Act of 1866 had already granted U.S. citizenship to all persons born in the United States; the framers of the Fourteenth Amendment added this principle into the Constitution to keep the Supreme Court from ruling the Civil Rights Act of 1866 to be unconstitutional for want of congressional authority to pass such a law or a future Congress from altering it by a bare majority vote.

This section was also in response to the Black Codes which southern states had passed in the wake of the Thirteenth Amendment, which ended slavery in the United States. Those laws attempted to return freed slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, and by preventing them from suing or testifying in court.

Section 1 also includes a formal definition of citizenship. During the original debate over the amendment, Senator Jacob M. Howard of Michigan—the author of the citizenship clause—described the clause as excluding not only "Indians", but also “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Howard also stated the word "jurisdiction" meant the United States possessed a “full and complete jurisdiction” over the person described in the amendment. Such meaning precluded citizenship to any person who was beholden, in even the slightest respect, to any sovereignty other than a U.S. state or the federal government.

Finally, this section was in response to violence against African Americans within the southern states. A Joint Committee on Reconstruction found that only a Constitutional amendment could protect the rights and safety of African Americans within those states.

Citizenship Clause

There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment. During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as excluding American Indians who maintain their tribal ties, and “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” He was supported by other senators, including Edgar Cowan, Reverdy Johnson, and Senate Judiciary Committee Chairman Lyman Trumbull. Howard additionally stated the word jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now" and that the United States possessed a “full and complete jurisdiction” over the person described in the amendment. Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893. Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means."
Reverdy Johnson said in the same debate: "If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States, there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States." Other senators, including Senator John Conness, supported the amendment, believing citizenship should include all children born in the United States.

In Elk v. Wilkins, , the clause's meaning was tested regarding whether it meant that anyone born in the United States would be a citizen regardless of the parents' nationality. In that case, the Supreme Court held that the children of Native Americans were not citizens, despite the fact that they were born in the United States.

The meaning was tested again in the case of United States v. Wong Kim Ark, , regarding children of non-citizen Chinese immigrants born in United States. The court ruled that the children were U.S. citizens.

The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark. Neither in that decision nor in any subsequent case has the Supreme Court explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the amendment, although that has generally been assumed to be the case. In some cases, the Court has implicitly assumed, or suggested in dicta, that such children are entitled to birthright citizenship: these include INS v. Rios-Pineda, and Plyler v. Doe, . Nevertheless, The Heritage Foundation has claimed the Congress possesses the power to exclude such children from U.S. citizenship by legislation.

The Constitution does not explicitly provide any procedure for loss of United States citizenship. Loss of U.S. citizenship is possible only under the following circumstances:

  • Fraud in the naturalization process. Technically, this is not loss of citizenship but rather a voiding of the purported naturalization and a declaration that the immigrant never was a U.S. citizen.
  • Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the State Departmentmarker or through other actions which demonstrate an intent to give up U.S. citizenship.


For a long time, voluntary acquisition or exercise of a foreign citizenship was considered sufficient cause for revocation of U.S. citizenship. This concept was enshrined in a series of treaties between the United States and other countries (the Bancroft Treaties). However, the Supreme Court repudiated this concept in Afroyim v. Rusk, , as well as Vance v. Terrazas, , holding that the Citizenship Clause of the Fourteenth Amendment barred the Congress from revoking citizenship.

Due Process Clause

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

The Court repudiated the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937). In the past forty years it has recognized a number of "fundamental rights" of individuals, such as privacy, which the states can regulate only under narrowly defined circumstances. The Court has also greatly expanded the reach of procedural due process, requiring some sort of hearing before the government may terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits.

The Court has ruled that in certain circumstances, the Due Process Clause requires a judge to recuse himself on account of concern of there being a conflict of interest. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginiamarker could not participate in a case involving a major donor to his election to that court.

Equal Protection Clause

In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia (1880)) or discriminating against Chinese-Americans in the regulation of laundry businesses (Yick Wo v. Hopkins (1886)), as violations of the Equal Protection Clause. However, in Plessy v. Ferguson (1896), the Supreme Court held that the states could impose segregation so long as they provided equivalent facilities—the genesis of the “separate but equal” doctrine. The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908), holding that the states could force private actors to discriminate by prohibiting an integrated college from admitting both black and white students. By the early twentieth century, the Equal Protection Clause had been eclipsed to the point that Justice Oliver Wendell Holmes, Jr. dismissed it as "the usual last resort of constitutional arguments."

The Court held to the "separate but equal" doctrine for more than fifty years, despite numerous cases in which the Court itself had found that the segregated facilities provided by the states were almost never equal, until Brown v. Board of Education (1954) reached the Court. Brown met with a campaign of resistance from white Southerners, and for decades the federal courts attempted to enforce Brown's mandate against continual attempts at circumvention. This resulted in the controversial desegregation busing decrees handed down by federal courts in many parts of the nation (see Milliken v. Bradley (1974)). In Hernandez v. Texas, the Court held that the Fourteenth Amendment protects those beyond the racial classes of white or "Negro",and extends to other racial and nationalistic groups, such as Mexican Americans in this case. In the half century since Brown, the Court has extended the reach of the Equal Protection Clause to other historically disadvantaged groups, such as women and illegitimate children, although it has applied a somewhat less stringent test than it has applied to governmental discrimination on the basis of race (United States v. Virginia (1996); Levy v. Louisiana (1968)).

Though the framers of the Fourteenth Amendment did not believe it would expand voting rights (leading to the passage of the Fifteenth Amendment), the Supreme Court, since Wesberry v. Sanders (1964) and Reynolds v. Sims (1964), has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats on a "one man, one vote" basis. The Court has also struck down districting plans in which race was a major consideration. In Shaw v. Reno (1993), the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic underrepresentation in the state's congressional delegations. In League of United Latin American Citizens v. Perry (2006), the Court ruled that Tom DeLay's Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause.

Incorporation

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

However, by the latter half of the twentieth century, nearly all of the rights in the Bill of Rights had been applied to the states, under what is known as the incorporation doctrine. The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Fourth and Sixth Amendments, the Cruel and Unusual Punishment Clause of the Eighth Amendment and the Fifth Amendment (except for its Grand Jury Clause). The Seventh Amendment have been held to be applicable to the states. The Supreme Court is reviewing McDonald v. Chicago, a case dealing with whether the Second Amendment is to be incorporated. While the Third Amendment has not been applied to the states by the Supreme Court, it was ruled, by the Second Circuit, that it did apply to the states within that circuit's jurisdiction in Engblom v. Carey.

Apportionment of Representatives

Section 2 of the Fourteenth Amendment establishes rules for the apportioning of Representatives in the Congress to states, essentially counting all residents for apportionment and reducing apportionment if a state wrongfully denies a person's right to vote. This section overrides the provisions of Article I, Section 2, Clause 3 of the Constitution, which counted only three-fifths of each state's slave population for purposes of allotting seats in the House of Representatives and the Electoral College.

However, the provision calling for proportional decreases in representation in the House of Representatives for states that denied men 21 and older the right to vote was never enforced, despite the fact that Southern states prevented many blacks from voting before the passage of the Voting Rights Act in 1965. Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment, but it should be noted that the Supreme Court has acknowledged the provisions of Section 2 in modern times. For example, in Richardson v. Ramirez, the Court invoked Section 2 to justify the disenfranchisement of felons by the states. In his dissent, Justice Marshall explained the history of the Section 2 in relation to the Post-Civil War Reconstruction era:

Participants in rebellion

Section 3 prevents the election or appointment to any federal or State office of any person who had held any of certain offices and then engaged in insurrection, rebellion or treason. However, a two-thirds vote by each House of the Congress can override this limitation. In 1975, Robert E. Lee's citizenship was restored by a joint congressional resolution, retroactive to June 13, 1865. In 1978, two-thirds of both Houses of Congress voted to posthumously remove the service ban from Jefferson Davis.

Validity of public debt

Section 4 confirmed the legitimacy of all United States public debt legislated by the Congress. It also confirmed that neither the United States nor any state would pay for the loss of slaves or debts that had been incurred by the Confederacy. For example, several English and French banks had lent money to the South during the war. In Perry v. United States (1935), the Supreme Courtmarker ruled that voiding a United States government bond "went beyond the congressional power" on account of Section 4.

Power of enforcement

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

Proposal and ratification

The United States Congress proposed the Fourteenth Amendment on June 13, 1866 and on July 9, 1868, three-fourths of the states (28 of 37) had ratified the amendment:

  1. Connecticutmarker (June 25, 1866)
  2. New Hampshiremarker (July 6, 1866)
  3. Tennesseemarker (July 19, 1866)
  4. New Jerseymarker (September 11, 1866)*
  5. Oregonmarker (September 19, 1866)
  6. Vermontmarker (October 30, 1866)
  7. Ohiomarker (January 4, 1867)*
  8. New Yorkmarker (January 10, 1867)
  9. Kansasmarker (January 11, 1867)
  10. Illinoismarker (January 15, 1867)
  11. West Virginiamarker (January 16, 1867)
  12. Michiganmarker (January 16, 1867)
  13. Minnesotamarker (January 16, 1867)
  14. Mainemarker (January 19, 1867)
  15. Nevadamarker (January 22, 1867)
  16. Indianamarker (January 23, 1867)
  17. Missourimarker (January 25, 1867)
  18. Rhode Islandmarker (February 7, 1867)
  19. Wisconsinmarker (February 7, 1867)
  20. Pennsylvaniamarker (February 12, 1867)
  21. Massachusettsmarker (March 20, 1867)
  22. Nebraskamarker (June 15, 1867)
  23. Iowamarker (March 16, 1868)
  24. Arkansasmarker (April 6, 1868)
  25. Floridamarker (June 9, 1868)
  26. North Carolinamarker (July 4, 1868, after having rejected it on December 14, 1866)
  27. Louisianamarker (July 9, 1868, after having rejected it on February 6, 1867)
  28. South Carolinamarker (July 9, 1868, after having rejected it on December 20, 1866)


*Ohio passed a resolution that purported to withdraw its ratification on January 15, 1868. The New Jersey legislature also tried to rescind its ratification on February 20, 1868. The New Jersey governor had vetoed his state's withdrawal on March 5, and the legislature overrode the veto on March 24. Accordingly, on July 20, 1868, Secretary of State William H. Seward certified that the amendment had become part of the Constitution if the rescissions were ineffective. The Congress responded on the following day, declaring that the amendment was part of the Constitution and ordering Seward to promulgate the amendment.

Meanwhile, two additional states had ratified the amendment:
  1. Alabamamarker (July 13, 1868, the date the ratification was "approved" by the governor)
  2. Georgiamarker (July 21, 1868, after having rejected it on November 9, 1866)


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

There were additional ratifications and rescissions; by 2003, the Amendment had been ratified by every state in the Union as of 1868:
  1. Virginiamarker (October 8, 1869, after having rejected it on January 9, 1867)
  2. Mississippimarker (January 17, 1870)
  3. Texasmarker (February 18, 1870, after having rejected it on October 27, 1866)
  4. Delawaremarker (February 12, 1901, after having rejected it on February 7, 1867)
  5. Marylandmarker (1959)
  6. Californiamarker (1959)
  7. Oregonmarker (1973, after withdrawing it on October 15, 1868)
  8. Kentuckymarker (1976, after having rejected it on January 8, 1867)
  9. New Jerseymarker (2003, after having rescinded on February 20, 1868)
  10. Ohiomarker (2003, after having rescinded on January 15, 1868)


Supreme Court cases

Citizenship





Corporate personhood



Privileges or immunities





Procedural due process/Incorporation







Substantive due process





Equal protection





Apportionment of Representatives



Power of Enforcement





Notes

  1. Tsesis, Alexander, The Inalienable Core of Citizenship: From Dred Scott to the Rehnquist Court. Arizona State Law Journal, Vol. 39, 2008
  2. Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2895.
  3. Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893. Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means." In a similar vein, Reverdy Johnson said in the same debate: "If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States, there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States."
  4. Finkelman, Paul, John Bingham and the Background to the Fourteenth Amendment. Akron Law Review, Vol. 36, No. 671, 2003
  5. Messner, Emily. “Born in the U.S.A. (Part I)”, The Debate, washingtonpost.com (2006-03-30).
  6. Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2890.
  7. "[...] During that debate, Senator Edgar Cowan of Pennsylvania objected to the citizenship clause of the 14th Amendment. 'Is the child of the Chinese immigrant in California a citizen?' he asked on the Senate floor. Senator John Conness of California said the answer should be 'yes.' 'The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens,' Mr. Conness said.",
  8. In INS v. Rios-Pineda the Supreme Court referred to a child born to deportable aliens as "a citizen of this country"
  9. In Plyler v. Doe the court stated in dicta that illegal immigrants are "within the jurisdiction" of the states in which they reside and added in a footnote that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
  10. For example, see Perez v. Brownell, , overruled by Afroyim v. Rusk,
  11. See also Mathews v. Eldridge (1976).
  12. Last paragraph in Opinion of the Court in Buck v. Bell (1927)
  13. Earl Warren: Judicial Revolution (sixth paragraph)
  14. e.g., United States v. Morrison (2000)
  15. 677 F.2d 957 (1982)
  16. For more on Section 2 go to Findlaw.com
  17. For more on Section 4 go to Findlaw.com
  18. 294 U.S. 330 at 354
  19. FindLaw: U.S. Constitution: Fourteenth Amendment, p. 40


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