Difference between revisions of "Fourteenth Amendment"

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== Legal History & Constructions of the Fourteenth Amendment ==
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The '''Fourteenth Amendment to the United States Constitution''' extended the liberties and rights given in the [[Bill of Rights]] to former slaves in the years immediately following the [[American Civil War]].
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===Passage===
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The Passage of the Fourteenth Amendment as a Constitutional Moment
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Passed in the heat of the Reconstruction period after the Civil War, the Fourteenth Amendment was only shortly debated in Congress.  In fact, after the long debate on the first of the [[Civil Rights Act]], few were willing to debate the Amendment for long.  Other strange circumstances surrounded the passage of the Amendment; notably, its ratification was rescinded by a few Northern states shortly after passage, and ratification was secured only by compulsion in the Southern states.  This has led to scholarly speculation about the "legality" of the Fourteenth Amendment.  While the subject continues to be debated in academic circles, though, the argument's practical validity has declined sharply: it is an integral part of America's constitutional framework, as it stands, and encompasses the most frequently litigated causes of action today.  To call it illegal, and end its domain, would be to tear down 1/2 of American constitutional law.  Further, a general historical consensus advocated by legal academia is that the Amendment was passed in a [[Constitutional Moment]] - i.e., a period of crisis when the state of affairs justifies a suspension of standard procedural rules, and instead, the country takes stock of its base morals in an extralegal, but moral, sense.<ref>Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. 115</ref>
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===Original Intent & Modern Construction===
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==History==
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Following the Civil War, Congress submitted to the states three amendments as part of its Reconstruction program to guarantee equal civil and legal rights to black citizens. The major provision of the 14th amendment was to grant citizenship to “All persons born or naturalized in the United States,” thereby granting citizenship to former slaves. Another equally important provision was the statement that “nor shall any state deprive any person of live, liberty, or property, without [[due process]] of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The right to due process of law and equal protection of the law now applied to both the Federal and state governments. On June 16, 1866, the House Joint Resolution proposing the 14th amendment to the Constitution was submitted to the states. On July 28, 1868, the 14th amendment was declared, in a certificate of the Secretary of State, ratified by the necessary 28 of the 37 States, and became part of the supreme law of the land.
  
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The history of the construction of the Fourteenth Amendment is as varied as was each period of [[United States]] history in which it has been used.  Truly, its construction has changed from the broad, to the narrow, and back again several times.  Current jurisprudence construes the Amendment broadly, and it is argued that this is inconsistent with the narrow “framer’s intent” of the [[Reconstruction Congress]].  However, several prominent legal scholars argue that the true “framer’s intent” of the Fourteenth Amendment was not to set its construction squarely in time in the 1860s, but rather, that the framers deliberately intended the Amendment’s application to vary and expand with time.  These scholars couch their interpretation in legislative history, where [[Radical Republicans]] on the Senate floor made many concessions to conservative Southern Democrats on the theoretical construction of the Fourteenth Amendment, but also deliberately switched from a narrow “civil-rights only” phraseology to a broader, generalist draft text of the Amendment, that eventually became law.<ref>Brest, Levinson, et al., “Processes in Constitutional Decisionmaking: Cases & Materials,” 5th Edition (Aspen Publications, 2006)  898-925.</ref>  The intent of these “framers,” it is argued, should be given controlling meaning.  This reading became widely popular after the [[Brown v. Board of Education]] of Topeka, Kansas decision, which suggested that Fourteenth Amendment case law must be re-evaluated by modern norms.<ref>Brown v. Board of Education of Kansas, 347 U.S. 483, herinafter “Brown”</ref>  Thus, “framer’s intent” of the Fourteenth Amendment becomes a more dynamic issue than “framer’s intent” in most other amendments, which is argued as being frozen in time.
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Congressman John A. Bingham of Ohio, the primary author of the first section of the 14th amendment, intended that the amendment also nationalize the Federal Bill of Rights by making it binding upon the states. Senator Jacob Howard of Michigan, introducing the amendment, specifically stated that the privileges and immunities clause would extend to the states “the personal rights guaranteed and secured by the first eight amendments.” He was, however, alone in this assertion. Most senators argued that the privileges and immunities clause did not bind the states to the Federal Bill of Rights.
  
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===Different Prongs of the Fourteenth Amendment===
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Not only did the 14th amendment fail to extend the Bill of Rights to the states; it also failed to protect the rights of black citizens (at least until [[Brown v. Board of Education]]). One legacy of Reconstruction was the determined struggle of black and white citizens to make the promise of the 14th amendment a reality. Citizens petitioned and initiated court cases, Congress enacted legislation, and the executive branch attempted to enforce measures that would guard all citizens’ rights. While these citizens did not succeed in empowering the 14th amendment during the Reconstruction, they effectively articulated arguments and offered dissenting opinions that would be the basis for change in the 20th century.
  
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The Amendment is litigated under three different substantive prongs: the [[due process clause]], the [[equal protection clause]], and the [[privileges and immunities clause]].
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==14th Amendment to the U.S. Constitution==
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'''AMENDMENT XIV'''
  
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The “privileges & immunities clause” urges that the states cannot abridge those privileges that come with national citizenship. The clause has largely been “drained” of meaning.<ref>See Brest & Levinson, supra</ref>  The [[Slaughterhouse Cases]] were largely responsible for this, as this case line limited the “privileges & immunities” that state citizens are entitled to very sharply indeed, and placing anything other than civil rights (even political rights) in the exclusive control of the states.  While this understanding has been largely abrogated, the clause is still rarely invoked, absent a brief 1999 revival.<ref>the Slaughterhouse Cases, 83 U.S. 36, and Sans v. Roe.</ref>  However, it is read to import the restrictions imposed upon the federal government by the [[Bill of Rights]], onto the state governments.
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===Section 1.===
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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.
  
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Contrary to the privileges & immunities clause, the equal protection clause is a clause basic to modern segregation law, and law in general. The clause was invoked in the justly reviled case [[Plessy v. Ferguson]], which held that while blacks and whites do deserve equal protection under this clause, segregation into “separate-but-equal” facilities do not abridge the right, and in fact preserve the public interest by separating the races, to the benefit of all.<ref>Plessy v. Ferguson, 163 U.S. 537</ref>  Under this case, “equal protection” was narrowly construed to serve a racist end.  However, the equal protection doctrine was vindicated by the landmark case Brown v. Board, which required that equality is never served by segregation, and as always, our Constitution demands equality.<ref>Brown, supra</ref>  This lauded declaration of the equal rights of mankind came only after a vigorous legal struggle, led by the [[NAACP]] and [[Thurgood Marshall]], who systematically tore down in court the conception that separate could ever be equal.<ref>see, e.g., Sweatt v. Painter (339 U.S. 629), see also Brest & Levinson, supra</ref>  Since this revival, the equal protection clause has underpinned many other significant civil rights advances, especially in state law jurisprudence.
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===Section 2.===
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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.
  
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===The Exciting Journey of the Due Process Clause===
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===Section 3.===
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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.
  
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“Due Process” is the doctrine which has undergone the most significant change throughout United States history. The Due Process Clause of the Fourteenth Amendment is in effect a carbon copy of the same clause of the Fifth Amendment.  The clause there protects against deprivation of property without process of law.  Early on, this was understood as encompassing only procedural limitations on deprivations, as in, the government cannot take property without a fair hearing, which has come to be called “[[procedural due process”]].<ref>For modern understandings of procedural due process, see, e.g., Mathews v. Eldridge, 424 U.S. 319</ref>  However, the justly hated case of “[[Dred Scott]],” for all its deeply troubling racist connotations, included also the first discussion of [[substantive due process]], which has ironically become a powerful weapon against racism.<ref>Scott v. Sanford, 60 U.S. 393</ref>  This case first held that the individual held certain rights which the government could not take without due process of law, as distinct from defining what procedural types of process are adequate.<ref>Brest & Levinson, 240</ref>  Early civil rights cases nonetheless largely ignored the Due Process Clause: it is treated only in passing by the [[Slaughterhouse Cases]], and narrowed by the [[Civil Rights Cases]], which held that the Constitution only protects an abridgement of rights undertaken by [[state action]] (subsequent cases have significantly confused the state action doctrine, to the benefit of the civil rights movement).<ref>The Civil Rights Cases, 109 U.S. 3, for weakening of the state action doctrine, see e.g. Shelley v. Kraemer, 334 U.S. 1 (holding that judicial enforcement of a racially restrictive covenant qualifies as significant state action, which must be struck down therein).</ref> 
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===Section 4.===
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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]].
  
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However, during [[Melville Fuller]]'s tenure, the Supreme Court often used the Due Process Clause to protect industry from being regulated by government, striking down laws to limit working hours or to establish a minimum wage. The most prominent case among them was ''[[Lochner v. New York]]''. During the [[New Deal]], the Due Process Clause was used to strike down various New Deal programs. President FDR almost packed the court to implement his New Deal. Later the court abandoned this approach and generally upheld expansion of governmental power, and the New Deal programs were enacted and implemented.
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===Section 5.===
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The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
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Nonetheless the due process clause has grown significantly in the substantive field in other areas. One of the first cases in the area held that a black man convicted by a jury empanelled with discriminatory screening of black jurors was denied due process of law, since he lost the substantive right to an unbiased and race-neutral jury.<ref>Strauder v. West Virginia, 100 U.S. 303.</ref>  The true explosion of substantive due process, though, came in the 1900s.  In a companion case to Brown, the Supreme Court held that segregation was a deprivation of a substantive right without due process of the law.<ref>Bolling v. Sharpe, 347 U.S. 497</ref>  Although much debated, as well, the landmark case [[Roe v. Wade]] enshrined substantive due process firmly in the landscape of American jurisprudence, holding that the right to choose is a substantive right which cannot be removed without rational governmental basis.  The Court held that, since the [[fetus]] was not alive at the time of Roe’s abortion, there was no rational basis for governmental intervention, and the substantive right is therefore supreme.<ref>Roe v. Wade, 410 U.S. 113</ref>  This expansion of substantive due process has been much criticized, especially by conservatives such as Justice [[Antonin Scalia]] and Supreme Court nominee [[Robert Bork]].<ref>Brest & Levinson, supra, 930</ref>  The idea of substantive due process was especially strongly asserted in the 2003 case [[Lawrence v. Texas]], which held that [[sodomy]] is a substantive right that cannot be abridged without rational basis, biblical objections and moral incentives not qualifying therein as rational basis.<ref>Lawrence v. Texas, 539 U.S. 558</ref>  Justice Scalia sharply dissented, arguing that this expansion of substantive due process would be “the dicta that ate the rule of law.” 
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{{US amendments}}
  
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Despite this objection, substantive due process and its expansion still enjoys a majority on the Supreme Court, certainly at least through the retirement of Chief Justice [[William Rehnquist]].  The framer’s intent on the expansion of the Fourteenth Amendment to this level can, of course, be debated, and it will be.  Arguments mentioned above certainly apply here – on the one hand no conservative Democrat in the Reconstruction Congress would have intended the Amendment to go that far. Certainly no Radical Republican foresaw this expansion, either. However, it can be argued that the legislative intent of the Amendment was especially to grow with the times, which it certainly has done.
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{{License|license = This work is in the [[public domain]] in the United States because it is a work of the United States Federal Government under the terms of Title 17, Chapter 1, Section 105 of the US Code.| source = [http://www.ourdocuments.gov/doc.php?doc=43]}}
  
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== The Text ==
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== See also ==
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* [[Civil Rights Movement]]
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* [[Due process]]
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* [[Due Process Clause]]
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* [[Bill of Rights]]
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* [[Unalienable rights]]
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* [[Fifth Amendment]]
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* [[Impeachment of a witness]]
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* [[Civil action]]
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* [[Claim]]
  
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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.
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[[Category:Legal Terms]]
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[[Category:Fourteenth Amendment]]
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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.
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[[Category:United States Law]]
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[[Category:Civil Rights]]
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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.
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[[Category:United States Constitution]]
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[[Category:United States History]]
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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.
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[[Category:Black History]]
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[[Category:Reconstruction]]
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Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
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==References==
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<references/>
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[[Category: Constitution]]
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[[Category:United States law]]
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Latest revision as of 02:19, July 1, 2021

Part of the series on
U.S. Discrimination Law
Const.gif
Standards of Review

Rational basis review
Intermediate scrutiny
Strict scrutiny

Other Legal Theories

Substantive due process
State action doctrine

Defining Moments in Law

The 14th Amendment
Plessy v. Ferguson
Brown v. Board of Education
Loving v. Virginia
U.S. v. Virginia
Romer v. Evans
Lawrence v. Texas

Modalities of Constitutional Law

Textual
Responsive

The Fourteenth Amendment to the United States Constitution extended the liberties and rights given in the Bill of Rights to former slaves in the years immediately following the American Civil War.

History

Following the Civil War, Congress submitted to the states three amendments as part of its Reconstruction program to guarantee equal civil and legal rights to black citizens. The major provision of the 14th amendment was to grant citizenship to “All persons born or naturalized in the United States,” thereby granting citizenship to former slaves. Another equally important provision was the statement that “nor shall any state deprive any person of live, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The right to due process of law and equal protection of the law now applied to both the Federal and state governments. On June 16, 1866, the House Joint Resolution proposing the 14th amendment to the Constitution was submitted to the states. On July 28, 1868, the 14th amendment was declared, in a certificate of the Secretary of State, ratified by the necessary 28 of the 37 States, and became part of the supreme law of the land.

Congressman John A. Bingham of Ohio, the primary author of the first section of the 14th amendment, intended that the amendment also nationalize the Federal Bill of Rights by making it binding upon the states. Senator Jacob Howard of Michigan, introducing the amendment, specifically stated that the privileges and immunities clause would extend to the states “the personal rights guaranteed and secured by the first eight amendments.” He was, however, alone in this assertion. Most senators argued that the privileges and immunities clause did not bind the states to the Federal Bill of Rights.

Not only did the 14th amendment fail to extend the Bill of Rights to the states; it also failed to protect the rights of black citizens (at least until Brown v. Board of Education). One legacy of Reconstruction was the determined struggle of black and white citizens to make the promise of the 14th amendment a reality. Citizens petitioned and initiated court cases, Congress enacted legislation, and the executive branch attempted to enforce measures that would guard all citizens’ rights. While these citizens did not succeed in empowering the 14th amendment during the Reconstruction, they effectively articulated arguments and offered dissenting opinions that would be the basis for change in the 20th century.

14th Amendment to the U.S. Constitution

AMENDMENT XIV

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 the power to enforce, by appropriate legislation, the provisions of this article.

Amendments to the Constitution of the United States of America
16th Amendment.jpg

Bill of Rights:
1 - Freedom of speech, press, religion, etc.
2 - Right to bear arms
3 - Quartering of soldiers
4 - Warrants
5 - Due process
6 - Right to a speedy trial
7 - Right by trial of a jury
8 - No cruel or unusual punishments
9 - Unenumerated rights
10 - Power to the people and states

11 - Immunity of states to foreign suits
12 - Revision of presidential election procedures
13 - Abolition of slavery
14 - Citizenship
15 - Racial suffrage
16 - Federal income tax
17 - Direct election of the United States Senate
18 - Prohibition of alcohol
19 - Women's suffrage
20 - Terms of the presidency
21 - Repeal of Eighteenth Amendment
22 - Limits the president to two terms
23 - District of Columbia Voting for President
24 - Prohibition of poll taxes
25 - Presidential disabilities
26 - Voting age lowered to 18
27 - Variance of congressional compensation


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See also

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