Fourteenth Amendment

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Legal History & Constructions of the Fourteenth Amendment

The Passage of the Fourteenth Amendment as a Constitutional Moment 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 Other strange circumstances surrounded the passage of the Amendment; notably, its ratification was rescinded by a few Northern states shortly after passage, and ratification was secured only by compulsion in the Southern states.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.[1]

Original Intent & Modern Construction

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.[2] 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.[3] 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.

Different Prongs of the Fourteenth Amendment

The Amendment is litigated under three different substantive prongs: the due process clause, the equal protection clause, and the privileges and immunities clause.

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.[4] 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.[5] However, it is read to import the restrictions imposed upon the federal government by the Bill of Rights, onto the state governments.

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.[6] 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.[7] 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.[8] Since this revival, the equal protection clause has underpinned many other significant civil rights advances, especially in state law jurisprudence.

The Exciting Journey of the Due Process Clause

“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”.[9] 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.[10] 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.[11] 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).[12]

Nonetheless the due process clause has grown significantly in the substantive field. 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.[13] 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.[14] 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.[15] This expansion of substantive due process has been much criticized, especially by conservatives such as Justice Antonin Scalia and Supreme Court nominee Robert Bork.[16] 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.[17] Justice Scalia sharply dissented, arguing that this expansion of substantive due process would be “the dicta that ate the rule of law.”

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.

The Text

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.

  1. Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. 115
  2. Brest, Levinson, et al., “Processes in Constitutional Decisionmaking: Cases & Materials,” 5th Edition (Aspen Publications, 2006) 898-925.
  3. Brown v. Board of Education of Kansas, 347 U.S. 483, herinafter “Brown”
  4. See Brest & Levinson, supra
  5. the Slaughterhouse Cases, 83 U.S. 36, and Sans v. Roe.
  6. Plessy v. Ferguson, 163 U.S. 537
  7. Brown, supra
  8. see, e.g., Sweatt v. Painter (339 U.S. 629), see also Brest & Levinson, supra
  9. For modern understandings of procedural due process, see, e.g., Mathews v. Eldridge, 424 U.S. 319
  10. Scott v. Sanford, 60 U.S. 393
  11. Brest & Levinson, 240
  12. 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).
  13. Strauder v. West Virginia, 100 U.S. 303.
  14. Bolling v. Sharpe, 347 U.S. 497
  15. Roe v. Wade, 410 U.S. 113
  16. Brest & Levinson, supra, 930
  17. Lawrence v. Texas, 539 U.S. 558