Fourteenth Amendment to the United States Constitution

• 1. Reconstruction Era Origins

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  On the 18th of June 1866, both houses of Congress passed a concurrent resolution requesting President Andrew Johnson to transmit the Fourteenth Amendment proposal to state governors. The Radical Republicans had drafted this amendment after Johnson vetoed the Civil Rights Act of 1866 on the 27th of March 1866. That bill guaranteed citizenship without regard to race or prior enslavement and attacked discriminatory Black Codes passed by formerly Confederate states. Johnson framed the expansion of citizenship to African Americans as racial discrimination in his veto message. He further compared that large numbers of intelligent, worthy, and patriotic foreigners were forced to wait for naturalization. Three weeks later, Johnson's veto was overridden and the measure became law. Unsure of their constitutional power to pass and enforce the law, especially if Southern Democrats retook Congress, the experience prompted drafting for a constitutional amendment to protect these civil rights. More than seventy proposals for an amendment were drafted during this period. In late 1865, the Joint Committee on Reconstruction proposed an amendment where states would only receive representation for their citizens with voting rights. This amendment passed the House but it was blocked in the Senate by a coalition of Radical Republicans led by Charles Sumner. Thaddeus Stevens opined that they would be obliged to be content with patching up the worst portions of the ancient edifice. Abolitionist Wendell Phillips called it a fatal and total surrender.

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• 2. Citizenship And Birthright Rights

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  The Citizenship Clause overruled the Supreme Court's Dred Scott decision that African Americans could not become citizens. Senator Jacob M. Howard of Michigan authored this clause which constitutionalized the Civil Rights Act of 1866's grant of citizenship to all born within the United States. The clause applies except to children of foreign diplomats. In United States v. Wong Kim Ark decided in 1898, the Supreme Court confirmed that children born in the United States receive birthright citizenship regardless of whether their parents are non-citizen immigrants. In Elk v. Wilkins decided in 1884, the Supreme Court interpreted the Citizenship Clause as granting birthright citizenship to all born within the jurisdiction of the United States. The court held that because Indian reservations are not under the federal government's jurisdiction, Native Americans born on such land are not entitled to birthright citizenship. The 1887 Dawes Act offered citizenship to Native Americans who accepted private property as part of cultural assimilation. The 1924 Indian Citizenship Act offered citizenship to all Native Americans born within the nation's territorial limits. In January 2025, President Donald Trump issued Executive Order 14160 to deny birthright citizenship to children with parents of illegal or temporary immigration status. Enforcement of the executive order has been blocked as unconstitutional by multiple federal judges.

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• 3. Due Process And Substantive Liberty

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  The Due Process Clause of the Fourteenth Amendment explicitly applies the Fifth Amendment's similar clause to state governments. This reinforcement of due process rights was in response to the Fugitive Slave Act of 1850 allowing slave owners to recapture their fugitive slaves without process. In the early 20th century, the Supreme Court embraced a freedom of contract in cases like Lochner v. New York decided in 1905. That freedom was ultimately curtailed in West Coast Hotel Co. v. Parrish decided in 1937. In Meyer v. Nebraska decided in 1923 and Pierce v. Society of Sisters decided in 1925, the court struck down anti-immigrant state education laws as violations of substantive due process. In 1890, future Supreme Court Justice Louis Brandeis and his law partner Samuel D. Warren II published The Right to Privacy in the Harvard Law Review. The Supreme Court later elevated privacy to a fundamental right protecting contraceptive sales in Griswold v. Connecticut decided in 1965. The court protected consensual sex in Lawrence v. Texas decided in 2003 and same-sex marriage in Obergefell v. Hodges decided in 2015 under substantive due process. In Roe v. Wade decided in 1973, the Supreme Court recognized a substantive due process right to abortion. That holding was overturned in Dobbs v. Jackson Women's Health Organization decided in 2022 which stated that a right to abortion is not deeply rooted in the Nation's history and traditions.

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• 4. Equal Protection And Civil Rights

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  The Equal Protection Clause was written to constitutionalize the anti-discrimination principles of the Civil Rights Act of 1866 and prevent enforcement of the southern states' Black Codes. In Strauder v. West Virginia decided in 1880, the Supreme Court recognized exclusion of African Americans from West Virginian juries as an unconstitutional infringement of this clause. In Yick Wo v. Hopkins decided in 1886, the Supreme Court clarified that race-neutral laws administered in discriminatory ways were similarly unconstitutional. In Plessy v. Ferguson decided in 1896, the Supreme Court held that racial segregation laws did not violate the Equal Protection Clause. Through civil rights litigation, groups like the NAACP weakened this doctrine culminating in Brown v. Board of Education decided in 1954 holding segregated facilities to be inherently unequal. The ruling was met with massive resistance in southern states leading state and federal courts to overturn many segregationist state laws. In Reed v. Reed decided in 1971, the Supreme Court unanimously struck down an Idaho probate law favoring men in its first application of the Equal Protection Clause to sex discrimination. Responding to second-wave feminism, the Supreme Court ruled in Craig v. Boren decided in 1976 that sex classifications would thereafter be subjected to intermediate scrutiny. In Students for Fair Admissions v. Harvard decided in 2023, the Supreme Court effectively overturned precedent declaring affirmative action unconstitutional in private universities that accept federal funds.

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• 5. Incorporation Of The Bill Of Rights

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  Prior to the Fourteenth Amendment, the Supreme Court held in Barron v. Baltimore decided in 1833 that the Bill of Rights only restrained the federal government. However, in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago decided in 1897, the Supreme Court applied the Fifth Amendment's Takings Clause to the eminent domain power of state governments under the Due Process Clause. This began an ongoing process of incorporation. Legal scholar Akhil Reed Amar has argued that while Congress intended the Fourteenth Amendment to reverse the Barron decision, Representative Bingham expected incorporation to rely on the Privileges or Immunities Clause. The Supreme Court has explicitly rejected incorporation of the Fifth Amendment's Grand Jury Clause and Seventh Amendment. It has never addressed the Third Amendment. In McDonald v. City of Chicago decided in 2010 and Timbs v. Indiana decided in 2019, Supreme Court Justice Clarence Thomas advocated transferring the incorporation doctrine from the Due Process Clause to the Privileges or Immunities Clause. That proposal has been criticized as a veiled attempt to restrict the rights of non-citizens within the United States.

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• 6. Insurrection And Disqualification Clauses

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  The Insurrection Clause disqualifies candidates for state or federal offices if they previously took an oath to support the Constitution when sworn into a public office but then engaged in insurrection or rebellion against the United States. Prior to the Fourteenth Amendment's adoption, Congress could only disqualify federal officials through impeachment and removal proceedings as it did for Tennessee District Court Judge West Hughes Humphreys in 1862. When Alexander H. Stephens, the former Vice President of the Confederate States of America, was elected to represent Georgia as a Senator in the 39th US Congress, the Republican-dominated Congress blocked him from taking office. To address the process of readmitting Confederate states, Congress established the Joint Committee on Reconstruction whose work expanded beyond this clause to the overall Fourteenth Amendment. Using Section 5 of the Fourteenth Amendment's congressional power of enforcement, the Enforcement Act of 1870 authorized federal prosecutors to issue writs of quo warranto to remove those disqualified by the Insurrection Clause from their political offices. In 1942, Congress' revisions of the US Code eliminated that provision. However, a section of the Confiscation Act of 1862 continues to disqualify anyone who incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States.

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• 7. Apportionment And Voting Rights

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  Under the Enumeration Clause of Article I, the size of state delegations to the House of Representatives was apportioned by adding their free populations with three-fifths of their enslaved populations. After the Thirteenth Amendment abolished slavery except as criminal punishment, Congress wrote Section 2 to reduce state representation based on the proportion of their male citizens aged 21 years or older that were denied voting rights. Since only two of the eleven referendums on African American suffrage held in northern states between 1865 and 1869 were successful, Congress assumed that the states would not ratify a nationwide grant of such voting rights. The Senate also rejected a House proposal ordering that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation because it would have permitted race-neutral discrimination. Southern states ignored this penalty and Congress declined to enforce it prompting the 1870 ratification of the Fifteenth Amendment to explicitly prohibit denial of voting rights on account of race, color, or previous condition of servitude. In Minor v. Happersett decided in 1875, the Supreme Court rejected voting as among rights protected by the Privileges or Immunities Clause because Section 2 shows that the Fourteenth Amendment only recognizes the voting rights of male citizens aged 21 years or older.

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