The Fourteenth Amendment was one of three articles added to the Constitution in the wake of and in response to the Civil War and the events leading up to the war. The Fourteenth Amendment is the most complex of the three, serving as the receptacle for a number of different concerns of the Republican-dominated thirty-ninth Congress that adopted the amendment.
- 1PROVISIONS OF THE AMENDMENT
- 2HISTORY OF THE ADOPTION OF THE AMENDMENT
- 3THE MEANING OF THE AMENDMENT
PROVISIONS OF THE AMENDMENT
Section 1 was and remains the most important part of the amendment, defining U.S. and state citizens, supplying protection for the privileges and immunities of U.S. citizens against abridgment by the states, and forbidding the states from depriving persons of life, liberty, or property without due process of law, or from denying to persons within their jurisdiction the equal protection of the laws.
The second section provides a new formula for representation in Congress to replace the three-fifths clause of Article 1, Section 2, according to which slaves were counted as three-fifths of a person in the calculation of the number of representatives each state was due. Section 2 of the Fourteenth Amendment provides that representation in the House of Representatives is to be calculated on the basis of the total population of the state (“Indians not taxed” excepted, as in the original Article 1 provision). However, the amendment also provides that “the basis” of representation will be reduced “in the proportion” in which males 21 years of age and older are denied the right to vote by the state. Thus Section 2 of the amendment does not require states to extend the suffrage to all males who are of age, but it does penalize states that do not do so. This provision was a response to the emancipation after the war and to the resentment many Northerners had over the representational bonus southern ruling elites had reaped because of their nonvoting slaves. This provision was meant to prevent these elites from garnering an even larger bonus from disenfranchised free blacks, who now were to be counted as whole persons for apportionment purposes.
Section 3 of the amendment rendered ineligible for state or federal public office any person who had served in such offices before the war and, having taken an oath to support the U.S. Constitution, “engaged in insurrection or rebellion.” This provision, on its face, had the effect of rendering ineligible for political office nearly the entire prewar southern elite. It did contain an override clause, however, according to which a two-thirds vote in Congress could “remove such disability.”
Section 4 prohibited the federal government or any state from paying debts incurred in support of “insurrection or rebellion against the United States,” or from compensating any losses resulting from the emancipation of the slaves. Although compensated emancipation had been on the table before the war, the struggle had produced a new consensus that compensation was unmerited. Finally, Section 5 succinctly provided that “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
HISTORY OF THE ADOPTION OF THE AMENDMENT
Although to different degrees important at the time, Sections 2–4 have not had the lasting significance of Sections 1 and 5. Section 1 is clearly an effort to supply new constitutional protections for the newly freed slaves, although it must be noted that its language is much broader and more general. At the time of passage of the Thirteenth Amendment, providing for emancipation, it was not contemplated that further amendments such as Section 1 of the Fourteenth, or the Fifteenth Amendment (which dealt with voting rights), would be required. Nonetheless, it soon became apparent that emancipation alone would not be sufficient. The southern states very quickly passed new laws, known as Black Codes, intended to regulate the freedmen and in many cases reduce them to a state of quasi-slavery. These laws imposed many special disabilities and restrictions, including a denial of the right to bear arms, to live where they chose, and to use the courts freely. These Black Codes provoked an immediate reaction in Congress, with two important pieces of legislation introduced early in 1866. One became the Civil Rights Act of 1866, a bill that was intended to protect the freedmen from the state Black Codes by declaring that “there shall be no discrimination in civil rights or immunities among the inhabitants of . . . the United States on account of race, color, or previous condition of servitude,” along with a substantial list of specific matters (e.g., the right to make contracts or to sue) about which the states were to provide “the same right” to all persons without regard to race, color, and so on. The law contained enforcement mechanisms and provided penalties for those who, acting under color of law, violated its provisions. The Civil Rights Act passed Congress in March 1866, but was vetoed shortly thereafter by President Andrew Johnson, largely on constitutional grounds. It was repassed over the president’s veto, but the constitutional questions raised by the president’s veto lent new importance to the second piece of legislation, what ultimately became the first and fifth sections of the Fourteenth Amendment. This legislation was also originally introduced early in 1866, in fact prior to the Civil Rights bill. An early version was cast in very broad language, empowering Congress to protect privileges and immunities and to guarantee equal protection of the rights to life, liberty, and property. This draft was debated in February 1866, met a good deal of resistance, and then was sent back to committee for revision, where it languished while the Civil Rights bill received more attention. Finally in May 1866 a revised draft amendment was introduced in Congress, which passed it on to the states for ratification in June of that year. The amendment was seen as an important part of the Republican Party platform for the congressional elections of 1866, and ratification of it was made a precondition for the rebel states regaining their seats in Congress. In 1868 it received the requisite number of state ratifications, and it became part of the Constitution.
THE MEANING OF THE AMENDMENT
The Fourteenth Amendment has been the most adjudicated part of the Constitution since its adoption, and it has been among the most controversial parts of the Constitution within both the political and scholarly worlds. Two broad sorts of interpretations have emerged. Some have understood the amendment to be transformative of the Constitution, a radical restructuring of the original constitutional order. Others have seen the amendment as working relatively minor changes in the constitutional system. The alternative readings of the amendment emerged in the very first Supreme Court case under it, the Slaughterhouse Cases of 1873. In these cases, Justice Samuel Miller, writing for the Court majority, adhered to the minimal change view; in dissent Justice Stephen Field defended the major constitutional revolution position. These alternatives have continued to dominate much of the constitutional scholarship of the next century and a half. The range of opinion is fostered by at least two aspects of the amendment. Its language is broad and apparently vague, leaving readers, it seems, much room for filling in on their own. The other important fact is the history of adoption, in which the amendment was so intertwined with the Civil Rights Act, a fact that has encouraged some to see the amendment as intending, in the main, to constitutionalize the Civil Rights Act. That has led some to interpret the amendment in light of the more concrete provisions of the Civil Rights Act. Others, however, note that the amendment was introduced before the Civil Rights bill, and can hardly have its sole meaning to be the constitutionalization of a bill that did not yet exist. Those who emphasize this part of the history tend to read the amendment as more far-reaching than the Civil Rights bill.
A third view, taking clues from speeches of advocates of the amendment in Congress, attempts to locate the overall intent of the amendment in a realm between the other two. It holds that the amendment aims to “complete the Constitution,” that is, to remedy certain basic flaws in the Constitution, some of which had been noted at the time of the drafting of the Constitution by no less a personage than James Madison, main architect of the original Constitution. It was not merely that the Constitution had failed to resolve the problem of slavery on which the Union eventually foundered in 1861, but it had failed to provide adequately against the centrifugal forces characteristic of federal systems, and it had also failed to provide adequately for rights protections in the states. This third theory of the amendment sees it as making substantial changes in the constitutional order, but not revolutionizing the system. It is rather a completion, in that it carries out intuitions of what the Constitution should have been, at least as envisaged by Madison.
Each of the three general and overall views of the amendment has a set of more specific interpretations of the chief clauses of Section 2 to accompany it. All agree that the first clause, defining citizens of the United States and the states, had the chief effect of overruling the notorious Dred Scott (1857) case, which had decreed that descendants of slaves could never become citizens of the United States. Instead, the amendment provided that all persons born or naturalized in the United States were citizens of the United States, a definition that brought the former slaves well within its terms. It also provided that such U.S. citizens were also citizens of “the state wherein they reside,” a definition that clearly made U.S. citizenship prior in some sense to state citizenship.
The constitutional revolution interpretation, not surprisingly, has the most far-reaching interpretations of the rest of Section 1’s provisions. In the form Justice Field gave it in early post-Reconstruction decisions, the amendment protects all “the fundamental rights, privileges, and immunities which belong to [a person] as a freeman and free citizen” (Slaughterhouse). The constitutional revolutionists tend not to be very discriminating in discerning different meanings in different parts of Section 1. Thus, when Field’s reading of the privileges or immunities provisions was rejected by the court majority, he found the same protections to be contained in the Equal Protection and Due Process Clauses. The implications of this expansive view for the grant of legislative power to Congress in Section 5 are equally immense. Congress is seen to have more or less plenary power to act to protect the basic rights identified in the amendment. One frequent criticism of the constitutional revolution theory is that it ignores the resistance to the original form of the amendment as debated in February 1866, and reads the amendment as if it remained in the language debated then.
At the other extreme, Justice Miller’s minor modification approach reads the Privileges and Immunities Clause in a very narrow way, finding in it hardly any more protections than existed prior to the adoption of the amendment. The emphasis is instead placed on the effort to supply additional safeguards for the rights of freedmen contained in the other clauses of Section 1. As became visible in later cases like Plessy v. Ferguson (1896), the minimal change view did not find very potent protections for the freedmen in these clauses either. With regard to congressional power under Section 5, the partisans of minimal change tended to hold to “the state action doctrine,” that is, the view that Congress may reach only actions by states or state officials and under no circumstances actions by private individuals (Civil Rights Cases 1883). As became clear over time, the minimal change view was very solicitous on behalf of the traditional federal system.
The “completing the Constitution” theory takes a more restrained view of what was accomplished by the Privileges and Immunities Clause than the “revolutionists” do. It notices, as does Justice Miller in Slaughterhouse, that the amendment identifies two kinds of citizenship, state and U.S., and that Section 1 protects only the privileges and immunities attached to the latter. This theory goes well beyond Miller’s view, however, in that it finds new substantive protections in the Privileges or Immunities Clause. Protected are special rights due to citizens of the United States by virtue of the Constitution or the nature of the federal union. Chief among these protections are those mentioned in the Bill of Rights. According to proponents of the “completing the Constitution” view, then, the Bill of Rights is meant to be incorporated against the states by the Privileges or Immunities Clause. Partisans of this theory recognize, however, that the rest of Section 1 refers to “persons” and not to “citizens of the U.S.” All persons are protected against state deprivations of life, liberty, and property—the basic natural rights—without due process of law. They are also entitled to equal legal protection of these basic rights by the states. Thus the amendment supplies a new protection to natural or fundamental rights against threats to those rights by the states. A state can threaten rights in two ways: it can directly infringe on them when it seizes the objects of rights (life, liberty, or property) without proper legal authority, or it can infringe them indirectly by failing to provide protection (or equal protection) for these rights. The “completing” theory shares with the revolutionary theory the idea that the amendment does supply protections for the most basic rights, but it differs in that it finds that protection in the Equal Protection and Due Process Clauses, and thus clearly recognizes that the states retain primary custody for the protection of these fundamental rights. The new constitutional right established is a federal right to protection by the states (not Congress) of one’s natural or fundamental rights. This theory of the amendment can thus be called “corrective federalism,” that is, the states govern, but if they misstep on rights questions the federal government can correct them. In line with the corrective federalism theory, Section 5 is read to provide for a “state failure” empowerment of Congress. This power goes beyond the “state action” doctrine in that if the states systematically fail, either through lack of will or lack of ability, to provide equal legal protection of rights, Congress may step in to provide such protection. Shortly after the adoption of the amendment, Congress acted on this theory in passing laws to protect freedmen against the Ku Klux Klan in the South.
Since the amendment was adopted, the Supreme Court has not consistently adhered to one or another of these theories of the amendment, and that has been responsible for the vacillating and not entirely satisfactory role of the Fourteenth Amendment in American constitutional history.
Akhil Reed Amar, The Bill of Rights (New Haven, CT: Yale University Press, 1998); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, 2nd ed. (Indianapolis, IN: Liberty Classics, 1997); James E. Bond, No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment (Westport, CT: Praeger, 1997); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986); Robert K. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876 (New York: Oceana Publications, 1985); Earl M. Maltz, Civil Rights, The Constitution, and Congress, 1863–1869 (Lawrence: University Press of Kansas, 1990); Jacobus ten Broek, Equal under the Law (New York: Collier, 1965); Michael P. Zuckert, “Completing the Constitution: The Fourteenth Amendment and Constitutional Rights,” Publius 22, no. 2 (Spring 1993): 69–91; and Michael P. Zuckert, “Congressional Power under the Fourteenth Amendment: The Original Understanding of Section 5,” Constitutional Commentary 3 (Winter 1986): 123–55.