Fourteenth Amendment to the United States Constitution

From Wikipedia, the free encyclopedia
Jump to: navigation, search
United States of America
Great Seal of the United States
This article is part of the series:

Preamble and Articles
of the Constitution

Preamble

Amendments to the Constitution

Ratified Amendments
The first ten Amendments are collectively known as the Bill of Rights

Unratified Amendments

Full text of the Constitution
and Amendments


US Government Portal
Law Portal
Constitutions of states in the Union
Constitutions of other countries

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. The amendment addresses citizenship rights and equal protection of the laws, and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by Southern states, which were forced to ratify it in order for them to regain representation in the Congress. The Fourteenth Amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark decisions such as Roe v. Wade (1973), regarding abortion, and Bush v. Gore (2000), regarding the 2000 presidential election. The amendment limits the actions of all state and local officials, including those acting on behalf of such an official.

The second, third, and fourth sections of the amendment are seldom, if ever, litigated. The fifth section gives Congress enforcement power. The amendment's first section includes several clauses: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The Citizenship Clause provides a broad definition of citizenship, overruling the Supreme Court's decision in Dred Scott v. Sandford (1857), which had held that Americans descended from African slaves could not be citizens of the United States. The Privileges or Immunities Clause has been interpreted in such a way that it does very little.

The Due Process Clause prohibits state and local government officials from depriving persons of life, liberty, or property without legislative authorization. This clause has also been used by the federal judiciary to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural requirements that state laws must satisfy.

The Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision that precipitated the dismantling of racial segregation, and for many other decisions rejecting irrational or unnecessary discrimination against people belonging to various groups.

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]

Adoption

Proposal by Congress

In the final years of the American Civil War and the Reconstruction Era that followed, Congress repeatedly debated the rights of black former slaves freed by the 1863 Emancipation Proclamation and the 1865 Thirteenth Amendment, the latter of which had formally abolished slavery. Following the passage of the Thirteenth Amendment by Congress, however, Republicans grew concerned over the increase it would create in the congressional representation of the Democratic-dominated Southern states. Because the full population of freed slaves would now be counted for determining congressional representation, rather than the three-fifths previously mandated by the Three-Fifths Compromise, the Southern states would dramatically increase their power in the population-based House of Representatives, regardless of whether the former slaves were allowed to vote.[2][3] Republicans began looking for a way to offset this advantage, either by protecting and attracting votes of former slaves, or at least by discouraging their disenfranchisement.[2][4][5]

In 1865, Congress passed what would become the Civil Rights Act of 1866, guaranteeing citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. The bill also guaranteed equal benefits and access to the law, a direct assault on the Black Codes passed by many post-war states. The Black Codes attempted to return ex-slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, prohibiting them from owning firearms, and by preventing them from suing or testifying in court.[6]

Although strongly urged by moderates in Congress to sign the bill, President Johnson vetoed it on March 27, 1866. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress, and that it discriminated in favor of African-Americans and against whites.[7][8] Three weeks later, Johnson's veto was overridden and the measure became law. This was the first time in American history that Congress was able to muster the votes necessary to override a presidential veto.[9] Despite this victory, even some Republicans who had supported the goals of the Civil Rights Act began to doubt that Congress really possessed constitutional power to turn those goals into laws.[10][11] The experience also encouraged both radical and moderate Republicans to seek Constitutional guarantees for black rights, rather than relying on temporary political majorities.[12]

Over 70 proposals for an amendment were drafted.[13] In late 1865, the Joint Committee on Reconstruction proposed an amendment stating that any citizens barred from voting on the basis of race by a state would not be counted for purposes of representation of that state.[14] This amendment passed the House, but was blocked in the Senate by a coalition of Radical Republicans led by Charles Sumner, who believed the proposal a "compromise with wrong", and Democrats opposed to black rights.[15] Consideration then turned to a proposed amendment by Representative John A. Bingham of Ohio, which would enable Congress to safeguard "equal protection of life, liberty, and property" of all citizens; this proposal failed to pass the House.[15] In April 1866, the Joint Committee forwarded a third proposal to Congress, a carefully negotiated compromise that combined elements of the first and second proposals as well as addressing the issues of Confederate debt and voting by ex-Confederates.[15] The House of Representatives passed House Resolution 127, 39th Congress several weeks later and sent to the Senate for action. The resolution was debated and several amendments to it were proposed. Amendments to Sections 2, 3 and 4 were adopted on June 8, 1866 and the modified resolution passed by a 33 to 11 vote. The House agreed to the Senate amendments on June 13 by a 138-36 vote. A concurrent resolution requesting the President to transmit the proposal to the executives of the several states was passed by both houses of Congress on June 18.[16]

The Radical Republicans were satisfied that they had secured civil rights for blacks, but were disappointed that the amendment would not also secure political rights for blacks, in particular the right to vote.[17] For example, Thaddeus Stevens, a leader of the disappointed Radical Republicans, said: "I find that we shall be obliged to be content with patching up the worst portions of the ancient edifice, and leaving it, in many of its parts, to be swept through by the tempests, the frosts, and the storms of despotism."[17][18] Abolitionist Wendell Phillips called it a "fatal and total surrender".[18] This point would later be addressed by the Fifteenth Amendment.

Ratification by the states

  Ratified amendment pre-certification, 1866–1868
  Ratified amendment pre-certification after first rejecting it, 1868
  Ratified amendment post-certification after first rejecting it, 1869–1976
  Ratified amendment post-certification, 1959
  Ratified amendment, withdrew ratification (rescission), then re-ratified
  Territories of the United States in 1868, not yet states

Ratification of the amendment was bitterly contested. State legislatures in every formerly Confederate state, with the exception of Tennessee, refused to ratify it. This refusal led to the passage of the Reconstruction Acts. Ignoring the existing state governments, military government was imposed until new civil governments were established and the Fourteenth Amendment was ratified.[19] It also prompted Congress to pass a law on March 2, 1867, requiring that a former Confederate state must ratify the Fourteenth Amendment before "said State shall be declared entitled to representation in Congress".[20]

Abolitionist leaders including Phillips criticized the amendment's failure to specifically prohibit the states from denying people the right to vote on the basis of race.[21] The reference to "male inhabitants" in Section 2 was the first reference to gender in the Constitution, and was condemned by women's suffragists such as Elizabeth Cady Stanton and Susan B. Anthony who had long seen their cause as linked to that of black rights. The separation of black civil rights from women's civil rights split the two movements for decades.[22]

The first twenty-eight states to ratify the Fourteenth Amendment were:[23]

On July 20, 1868, Secretary of State William H. Seward certified that the amendment had become part of the Constitution on July 9, 1868, if withdrawals of ratification by New Jersey and Ohio were ineffective.[24] The following day, Congress adopted and transmitted to the Department of State a concurrent resolution declaring the Fourteenth Amendment to be a part of the Constitution and directing the Secretary of State to promulgate it as such.[25] Both New Jersey and Ohio were named in the congressional resolution as having ratified the amendment. Their inclusion as ratifying states by Congress goes to the merits of rescinding a ratification after it's been affirmed, and of approving a ratification after it's been rejected. It would appear that Congress has determined both have no impact on the ratification process — see Coleman v. Miller, 307 U.S. 433 (1939).[25] Accordingly, Seward issued an unconditional certificate of ratification, dated July 28, 1868, declaring that the Fourteenth Amendment had been duly ratified by the requisite three-fourths of the states. During the preceding week, two additional states had ratified the amendment, which left no doubt that the amendment had indeed become operational.[26]

The Fourteenth Amendment was subsequently ratified:[23]

  • Alabama — July 13, 1868
  • Georgia — July 21, 1868 (After rejection – November 9, 1866)
  • Virginia — October 8, 1869 (after rejection – January 9, 1867)
  • Mississippi — January 17, 1870
  • Texas — February 18, 1870 (after rejection – October 27, 1866)
  • Delaware — February 12, 1901 (after rejection – February 8, 1867)
  • Maryland — April 4, 1959 (after rejection – March 23, 1867)
  • California — May 6, 1959
  • Kentucky — March 30, 1976 (after rejection – January 8, 1867)

Citizenship and civil rights

The two pages of the Fourteenth Amendment in the National Archives

Background

Section 1 of the amendment formally defines United States citizenship and also protects various civil rights from being abridged or denied by any state or state actor. Abridgment or denial of those civil rights by private persons is not addressed by this amendment; the Supreme Court held in the Civil Rights Cases (1883)[27] that the amendment was limited to "state action" and, therefore, did not authorize the Congress to outlaw racial discrimination by private individuals or organizations (though Congress can sometimes reach such discrimination via other parts of the Constitution). U.S. Supreme Court Justice Joseph P. Bradley commented in the Civil Rights Cases that “individual invasion of individual rights is not the subject-matter of the [14th] Amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws.”[28]

The Radical Republicans who advanced the Thirteenth Amendment hoped to ensure broad civil and human rights for the newly freed people—but its scope was disputed before it even went into effect.[29] The framers of the Fourteenth Amendment wanted these principles enshrined in the Constitution to protect the new Civil Rights Act from being declared unconstitutional by the Supreme Court and also to prevent a future Congress from altering it by a mere majority vote.[30][31] This section was also in response to violence against black people within the Southern states. The Joint Committee on Reconstruction found that only a Constitutional amendment could protect black people's rights and welfare within those states.[32]

This first section of the amendment has been the most frequently litigated part of the amendment,[33] and this amendment in turn has been the most frequently litigated part of the Constitution.[34]

Citizenship Clause

Senator Jacob M. Howard of Michigan, author of the Citizenship Clause

The Citizenship Clause overruled the Supreme Court's Dred Scott decision that black people were not citizens and could not become citizens, nor enjoy the benefits of citizenship.[35][36] Some members of Congress voted for the Fourteenth Amendment in order to eliminate doubts about the constitutionality of the Civil Rights Act of 1866,[37] or to ensure that no subsequent Congress could later repeal or alter the main provisions of that Act.[38] The Civil Rights Act of 1866 had granted citizenship to all persons born in the United States if they were not subject to a foreign power, and this clause of the Fourteenth Amendment constitutionalized this rule.

There are varying interpretations of the original intent of Congress and of the ratifying states, based on statements made during the congressional debate over the amendment, as well as the customs and understandings prevalent at that time.[39][40] Some of the major issues that have arisen about this clause are the extent to which it included Native Americans, its coverage of non-citizens legally present in the United States when they have a child, whether the clause allows revocation of citizenship, and whether the clause applies to illegal immigrants.

Native Americans

During the original congressional debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause[41]—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes Native Americans 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."[42] According to historian Glenn W. LaFantasie of Western Kentucky University, "A good number of his fellow senators supported his view of the citizenship clause."[41] Others also agreed that the children of ambassadors and foreign ministers were to be excluded.[43][44]

Senator James Rood Doolittle of Wisconsin asserted that all Native Americans were subject to United States jurisdiction, so that the phrase "Indians not taxed" would be preferable,[45] but Senate Judiciary Committee Chairman Lyman Trumbull and Howard disputed this, arguing that the federal government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.[46][47] In Elk v. Wilkins (1884),[48] the clause's meaning was tested regarding whether birth in the United States automatically extended national citizenship. The Supreme Court held that Native Americans who voluntarily quit their tribes did not automatically gain national citizenship.[49] The issue was resolved with the passage of the Indian Citizenship Act of 1924, which granted full U.S. citizenship to indigenous peoples.[50]

Children born to citizens of other countries

The Fourteenth Amendment provides that children born in the United States become American citizens regardless of the citizenship of their parents.[51] At the time of the amendment's passage, three Senators, including Trumbull,[52] the author of the Civil Rights Act, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the Fourteenth Amendment would confer citizenship on such children at birth; however, Senator Edgar Cowan of Pennsylvania had a definitively contrary opinion.[53][54][55][56] These congressional remarks applied to non-citizens lawfully present in the United States, as the problem of unauthorized immigration did not exist in 1866, and some scholars dispute whether the Citizenship Clause applies to unauthorized immigrants, although the law of the land continues to be based on the standard interpretation.[51] Congress during the 21st century has occasionally discussed revising the clause to reduce the practice of "birth tourism", in which a pregnant foreign national gives birth in the United States for purposes of the child's citizenship.[57]

The clause's meaning with regard to a child of legal immigrants was tested in United States v. Wong Kim Ark (1898).[58] The Supreme Court held that under the Fourteenth Amendment, a man born within the United States to Chinese citizens who have a permanent domicile and residence in the United States and are carrying on business in the United States—and whose parents were not employed in a diplomatic or other official capacity by a foreign power—was a citizen of the United States. Subsequent decisions have applied the principle to the children of foreign nationals of non-Chinese descent.[59]

Loss of citizenship

Loss of national 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 citizen of the United States.
  • Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the State Department or through other actions that demonstrate desire to give up national citizenship.[60]

For much of the country's history, voluntary acquisition or exercise of a foreign citizenship was considered sufficient cause for revocation of national citizenship.[61] 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 (1967),[62] as well as Vance v. Terrazas (1980),[63] holding that the Citizenship Clause of the Fourteenth Amendment barred the Congress from revoking citizenship. However, a person can, of his own volition, constitutionally renounce his citizenship, and moreover Congress can revoke citizenship that it had previously granted to a person not born in the United States.[64]

Privileges or Immunities Clause

The Privileges or Immunities Clause, which protects the privileges and immunities of national citizenship from interference by the states, was patterned after the Privileges and Immunities Clause of Article IV,[65] which protects the privileges and immunities of state citizenship from interference by other states.[66] In the Slaughter-House Cases (1873),[66] the Supreme Court concluded that the Constitution recognized two separate types of citizenship—"national citizenship" and "state citizenship"—and the Court held that the Privileges or Immunities Clause prohibits states from interfering only with privileges and immunities possessed by virtue of national citizenship.[66][67] The Court concluded that the privileges and immunities of national citizenship included only those rights that "owe their existence to the Federal government, its National character, its Constitution, or its laws."[66] The Court recognized few such rights, including access to seaports and navigable waterways, the right to run for federal office, the protection of the federal government while on the high seas or in the jurisdiction of a foreign country, the right to travel to the seat of government, the right to peaceably assemble and petition the government, the privilege of the writ of habeas corpus, and the right to participate in the government's administration.[66][67] This decision has not been overruled and has been specifically reaffirmed several times.[68] Largely as a result of the narrowness of the Slaughter-House opinion, this clause subsequently lay dormant for well over a century.[69]

In Saenz v. Roe (1999),[70] the Court ruled that a component of the "right to travel" is protected by the Privileges or Immunities Clause:

Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause "is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State." (emphasis added)

Justice Miller actually wrote in the Slaughter-House Cases that the right to become a citizen of a state (by residing in that state) "is conferred by the very article under consideration" (emphasis added), rather than by the "clause" under consideration.[66][71]

In McDonald v. Chicago (2010), Justice Clarence Thomas, while concurring with the majority in incorporating the Second Amendment against the states, declared that he reached this conclusion through the Privileges or Immunities Clause instead of the Due Process Clause. Randy Barnett has referred to Justice Thomas's concurring opinion as a "complete restoration" of the Privileges or Immunities Clause.[72]

Due Process Clause

The Due Process Clause of the Fourteenth Amendment applies against only the states, but it is otherwise textually identical to the Due Process Clause of the Fifth Amendment, which applies against the federal government; both clauses have been interpreted to encompass identical doctrines of procedural due process and substantive due process.[73] Procedural due process is the guarantee of a fair legal process when the government seeks to burden[jargon] a person's protected interests in life, liberty, or property, and substantive due process is the guarantee that the fundamental rights of citizens will not be encroached on by government.[74] The Due Process Clause of the Fourteenth Amendment also incorporates most of the provisions in the Bill of Rights, which were originally applied against only the federal government, and applies them against the states.[75]

Substantive due process

Beginning with Allgeyer v. Louisiana (1897),[76] the Court interpreted the Due Process Clause as providing substantive protection to private contracts, thus prohibiting a variety of social and economic regulation; this principle was referred to as "freedom of contract".[77] Thus, the Court struck down a law decreeing maximum hours for workers in a bakery in Lochner v. New York (1905)[78] and struck down a minimum wage law in Adkins v. Children's Hospital (1923).[79] In Meyer v. Nebraska (1923),[80] the Court stated that the "liberty" protected by the Due Process Clause

"[w]ithout doubt...denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."[81]

However, the Court did uphold some economic regulation, such as state Prohibition laws (Mugler v. Kansas, 1887),[82] laws declaring maximum hours for mine workers (Holden v. Hardy, 1898),[83] laws declaring maximum hours for female workers (Muller v. Oregon, 1908),[84] and President Woodrow Wilson's intervention in a railroad strike (Wilson v. New, 1917),[85] as well as federal laws regulating narcotics (United States v. Doremus, 1919).[86] The Court repudiated, but did not explicitly overrule, the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937).[87]

Although the "freedom of contract" has fallen into disfavor, by the 1960s, the Court had extended its interpretation of substantive due process to include other rights and freedoms that are not enumerated in the Constitution but that, according to the Court, extend or derive from existing rights.[77] For example, the Due Process Clause is also the foundation of a constitutional right to privacy. The Court first ruled that privacy was protected by the Constitution in Griswold v. Connecticut (1965), which overturned a Connecticut law criminalizing birth control.[88] While Justice William O. Douglas wrote for the majority that the right to privacy was found in the "penumbras" of various provisions in the Bill of Rights, Justices Arthur Goldberg and John Marshall Harlan II wrote in concurring opinions that the "liberty" protected by the Due Process Clause included individual privacy.[89]

The right to privacy was the basis for Roe v. Wade (1973),[90] in which the Court invalidated a Texas law forbidding abortion except to save the mother's life. Like Goldberg's and Harlan's concurring opinions in Griswold, the majority opinion authored by Justice Harry A. Blackmun located the right to privacy in the Due Process Clause's protection of liberty. The decision disallowed many state and federal abortion restrictions, and it became one of the most controversial in the Court's history.[91] In Planned Parenthood v. Casey (1992),[92] the Court decided that "the essential holding of Roe v. Wade should be retained and once again reaffirmed."[93] In Lawrence v. Texas (2003),[94] the Court found that a Texas law against same-sex sexual intercourse violated the right to privacy.[95]

Procedural due process

When the government seeks to burden a person's protected liberty interest or property interest, the Supreme Court has held that procedural due process requires that, at a minimum, the government provide the person notice, an opportunity to be heard at an oral hearing, and a decision by a neutral decision maker. For example, such process is due when a government agency seeks to terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits.[96][97]

The Court has also ruled that the Due Process Clause requires judges to recuse themselves in cases where the judge has a conflict of interest. For example, in Caperton v. A.T. Massey Coal Co. (2009),[98] the Court ruled that a justice of the Supreme Court of Appeals of West Virginia had to recuse himself from a case involving a major contributor to his campaign for election to that court.[99]

Incorporation

While many state constitutions are modeled after the United States Constitution and federal laws, those state constitutions did not necessarily include provisions comparable to the Bill of Rights. In Barron v. Baltimore (1833),[100] the Supreme Court unanimously ruled that the Bill of Rights restrained only the federal government, not the states.[101] However, the Supreme Court has subsequently held that most provisions of the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment under a doctrine called "incorporation."[75]

Whether incorporation was intended by the amendment's framers, such as John Bingham, has been debated by legal historians.[102] According to legal scholar Akhil Reed Amar, the framers and early supporters of the Fourteenth Amendment believed that it would ensure that the states would be required to recognize the same individual rights as the federal government; all of these rights were likely understood as falling within the "privileges or immunities" safeguarded by the amendment.[103]

By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states.[104] The Supreme Court has held that the amendment's Due Process Clause incorporates all of the substantive protections of the First, Second, Fourth, Fifth (except for its Grand Jury Clause) and Sixth Amendments and the Cruel and Unusual Punishment Clause of the Eighth Amendment.[105] While the Third Amendment has not been applied to the states by the Supreme Court, the Second Circuit ruled that it did apply to the states within that circuit's jurisdiction in Engblom v. Carey.[106] The Seventh Amendment right to jury trial in civil cases has been held not to be applicable to the states,[105][107] but the amendment's Re-Examination Clause applies not only to federal courts, but also to "a case tried before a jury in a state court and brought to the Supreme Court on appeal."[108]

Equal Protection Clause

Representative John Bingham of Ohio, principal author of the Equal Protection Clause

The Equal Protection Clause was created largely in response to the lack of equal protection provided by law in states with Black Codes. Under Black Codes, blacks could not sue, give evidence, or be witnesses, and they received harsher degrees of punishment than whites.[109] The Supreme Court in Strauder v. West Virginia stated that the Equal Protection Clause was

designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.

The Clause mandates that individuals in similar situations be treated equally by the law.[110] Although the text of the Fourteenth Amendment applies the Equal Protection Clause only against the states, the Supreme Court, since Bolling v. Sharpe (1954), has applied the Clause against the federal government through the Due Process Clause of the Fifth Amendment under a doctrine called "reverse incorporation".[111][112]

In Yick Wo v. Hopkins (1886), the Supreme Court has clarified that the meaning of "person" and "within its jurisdiction" in the Equal Protection Clause would not be limited to discrimination against African Americans, but would extend to other races, colors, and nationalities such as (in this case) legal aliens in the United States who are Chinese citizens:[113][114] "These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws."

Persons "within its jurisdiction" are entitled to equal protection from a state. Largely because the Privileges and Immunities Clause of Article IV has from the beginning guaranteed the privileges and immunities of citizens in the several states, the Supreme Court has rarely construed the phrase "within its jurisdiction" in relation to natural persons.[114] In Plyler v. Doe, 457 U.S. 202, 210-16 (1982) where the Court hold that aliens illegally present in a state are within its jurisdiction and may thus raise equal protection claims[114] the Court explicated the meaning of the phrase "within its jurisdiction" as follows: "[U]se of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory."[115] The Court reached this understanding among other things from Senator Howard, a member of the Joint Committee of Fifteen, and the floor manager of the amendment in the Senate. Senator Howard was explicit about the broad objectives of the Fourteenth Amendment and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a state:[115]

The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all person who may happen to be within their jurisdiction. [emphasis added by the U.S. Supreme Court][116]

The relationship between the Fifth and Fourteenth Amendments was addressed by Justice Field in Wong Wing v. United States. He observed with respect to the phrase "within its jurisdiction": "The term 'person,' used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws. . . . The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar -- in face of the great constitutional amendment which declares that no State shall deny to any person within its jurisdiction the equal protection of the laws."[117]

Whether foreign corporations are also within the jurisdiction of a state was also decided by the Supreme Court. The Supreme Court held that a foreign corporation which sued in a state court in which it was not licensed to do business to recover possession of property wrongfully taken from it in another state was within the jurisdiction and could not be subjected to unequal burdens in the maintenance of the suit.[114] When a state has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws but not necessarily to identical treatment with domestic corporations.[114]

In Santa Clara County v. Southern Pacific Railroad (1886), the court reporter included a statement by Chief Justice Morrison Waite in the decision's headnote:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.[118]

This dictum, which established that corporations enjoyed personhood under the Equal Protection Clause, was repeatedly reaffirmed by later courts.[118] It remained the predominant view throughout the twentieth century, though it was challenged in dissents by justices such as Hugo Black and William O. Douglas.[119]

In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia, 1880)[120] or discriminating against Chinese Americans in the regulation of laundry businesses (Yick Wo v. Hopkins, 1886),[121] as violations of the Equal Protection Clause. However, in Plessy v. Ferguson (1896),[122] the Supreme Court held that the states could impose segregation so long as they provided similar facilities—the formation of the "separate but equal" doctrine.[123]

The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908),[124] holding that the states could force private actors to discriminate by prohibiting colleges from having both black and white students. By the early 20th 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."[125]

Thurgood Marshall served as chief counsel in the landmark Fourteenth Amendment decision Brown v. Board of Education (1954).

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.[126] In Brown the Court ruled that even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was harmful to black students and so was unconstitutional. Brown met with a campaign of resistance from white Southerners, and for decades the federal courts attempted to enforce Brown's mandate against repeated attempts at circumvention.[127] This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation.[128] In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court ruled that race could not be the determinative factor in determining to which public schools parents may transfer their children.[129]

In Plyler v. Doe (1982) the Supreme Court struck down a Texas statute denying free public education to illegal immigrants as a violation of the Equal Protection Clause of the Fourteenth Amendment because discrimination on the basis of illegal immigration status did not further a substantial state interest. The Court reasoned that illegal aliens and their children, though not citizens of the United States or Texas, are people "in any ordinary sense of the term" and, therefore, are afforded Fourteenth Amendment protections.[130]

In Hernandez v. Texas (1954), the Court held that the Fourteenth Amendment protects those beyond the racial classes of white or "Negro" and extends to other racial and ethnic groups, such as Mexican Americans in this case.[131] In the half-century following Brown, the Court 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 standard than it has applied to governmental discrimination on the basis of race (United States v. Virginia, 1996;[132] Levy v. Louisiana, 1968[133]).[134]

The Supreme Court ruled in Regents of the University of California v. Bakke (1978)[135] that affirmative action in the form of racial quotas in public university admissions was a violation of Title VI of the Civil Rights Act of 1964; however, race could be used as one of several factors without violating of the Equal Protection Clause or Title VI.[136] In Gratz v. Bollinger (2003)[137] and Grutter v. Bollinger (2003),[138] the Court considered two race-conscious admissions systems at the University of Michigan. The university claimed that its goal in its admissions systems was to achieve racial diversity.[139] In Gratz, the Court struck down a points-based undergraduate admissions system that added points for minority status, finding that its rigidity violated the Equal Protection Clause; in Grutter, the Court upheld a race-conscious admissions process for the university's law school that used race as one of many factors to determine admission.[140] In Fisher v. University of Texas (2013), the Court ruled that before race can be used in a public university's admission policy, there must be no workable race-neutral alternative.[141]

Reed v. Reed (1971),[142] which struck down an Idaho probate law favoring men, was the first decision in which the Court ruled that arbitrary gender discrimination violated the Equal Protection Clause.[143] In Craig v. Boren (1976),[144] the Court ruled that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review.[145] Reed and Craig later served as precedents to strike down a number of state laws discriminating by gender.[143]

Since Wesberry v. Sanders (1964)[146] and Reynolds v. Sims (1964),[147] the Supreme Court has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats according to "one man, one vote".[148] The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993),[149] the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic underrepresentation in the state's congressional delegations.[150]

The Equal Protection Clause served as the basis for the decision in Bush v. Gore (2000),[151] in which the Court ruled that no constitutionally valid recount of Florida's votes in the 2000 presidential election could be held within the needed deadline; the decision effectively secured Bush's victory in the disputed election.[152] In League of United Latin American Citizens v. Perry (2006),[153] the Court ruled that House Majority Leader Tom DeLay's Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause.[154]

State action/State actor doctrine

Individual liberties guaranteed by the United States Constitution protect, with exception of the Thirteenth Amendment’s ban on slavery, not against actions by private persons or entities, but only against actions by government officials.[155] Regarding the Fourteenth Amendment, the Supreme Court ruled in Shelley v. Kraemer, 334 U.S. 1 (1948): "[T]he action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." The court added in Civil Rights Cases, 109 U.S. 3 (1883): "It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws."

Vindication of federal constitutional rights are limited to those situations where there is “state action” meaning action of government officials who are exercising their governmental power.[155] In Ex parte Virginia, 100 U.S. 339 (1880), the Supreme Court found that the prohibitions of the Fourteenth Amendment "have reference to actions of the political body denominated by a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State."[156]

There are however instances where people are the victims of civil-rights violations that occur in circumstances involving both government officials and private actors.[155] In the 1960s, the United States Supreme Court adopted an expansive view of state action opening the door to wide-ranging civil-rights litigation against private actors when they act as state actors[155] (i.e., acts done or otherwise "sanctioned in some way" by the state). The Court found that the state action doctrine is equally applicable to denials of privileges or immunities, due process, and equal protection of the laws.[114]

The critical factor in determining the existence of state action is not governmental involvement with private persons or private corporations, but "the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself."[156] "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."[157]

The Supreme Court asserted that plaintiffs must establish not only that a private party "acted under color of the challenged statute, but also that its actions are properly attributable to the State. [...]" [158] "And the actions are to be attributable to the State apparently only if the State compelled the actions and not if the State merely established the process through statute or regulation under which the private party acted."[114]

The rules developed by the Supreme Court for business regulation are that (1) the "mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment,"[a] and (2) "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State."[b]

Apportionment of representation in House of Representatives

Section 2 altered the way each state's representation in the House of Representatives is determined. It counts all residents for apportionment, overriding Article I, Section 2, Clause 3 of the Constitution, which counted only three-fifths of each state's slave population.

Section 2 also reduces a state's apportionment if it wrongfully denies any adult male's right to vote, while explicitly permitting felony disenfranchisement. However, this provision was never enforced, and Southern states continued to use pretexts to prevent many blacks from voting until the passage of Voting Rights Act of 1965.[159] Because it protects the right to vote only of adult males, not adult females, this clause is the only provision of the US Constitution to discriminate explicitly on the basis of sex.[31]

Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment,[160] but the Supreme Court acknowledged the provisions of Section 2 in some later decisions. For example, in Richardson v. Ramirez (1974), the Court cited Section 2 as justification for the states disenfranchising felons.[161]

Participants in rebellion

Section 3 prohibits 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 1898, the Congress enacted a general removal of Section 3's limitation.[162] In 1975, the citizenship of Confederate general Robert E. Lee was restored by a joint congressional resolution, retroactive to June 13, 1865.[163] In 1978, pursuant to Section 3, the Congress posthumously removed the service ban from Confederate president Jefferson Davis.[164]

Section 3 was used to prevent Socialist Party of America member Victor L. Berger, convicted of violating the Espionage Act for his anti-militarist views, from taking his seat in the House of Representatives in 1919 and 1920.[165]

Validity of public debt

Section 4 confirmed the legitimacy of all public debt appropriated 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, during the Civil War several British and French banks had lent large sums of money to the Confederacy to support its war against the Union.[166] In Perry v. United States (1935), the Supreme Court ruled that under Section 4 voiding a United States bond "went beyond the congressional power."[167]

The debt-ceiling crises of 2011 and 2013 raised the question of what powers Section 4 gives to the President.[168][169] Some, such as legal scholar Garrett Epps, fiscal expert Bruce Bartlett and Treasury Secretary Timothy Geithner, have argued that a debt ceiling may be unconstitutional and therefore void as long as it interferes with the duty of the government to pay interest on outstanding bonds and to make payments owed to pensioners (that is, Social Security recipients).[170][171] Legal analyst Jeffrey Rosen has argued that Section 4 gives the President unilateral authority to raise or ignore the national debt ceiling, and that if challenged the Supreme Court would likely rule in favor of expanded executive power or dismiss the case altogether for lack of standing.[172] Erwin Chemerinsky, professor and dean at University of California, Irvine School of Law, has argued that not even in a "dire financial emergency" could the President raise the debt ceiling as "there is no reasonable way to interpret the Constitution that [allows him to do so]".[173] Jack Balkin, Knight Professor of Constitutional Law at Yale University, opined that like Congress the President is bound by the Fourteenth Amendment, for otherwise he could violate the amendment sections at will. Because the President must obey the Section 4 requirement not to put the validity of the public debt into question, Balkin argued that President Obama is obliged "to prioritize incoming revenues to pay the public debt: interest on government bonds and any other 'vested' obligations. What falls into the latter category is not entirely clear, but a large number of other government obligations—and certainly payments for future services—would not count and would have to be sacrificed. This might include, for example, Social Security payments."[169]

Power of enforcement

Section 5, also known as the Enforcement Clause of the Fourteenth Amendment, enables Congress to pass laws enforcing the amendment's other provisions.[174][175] In the Civil Rights Cases (1883),[27] the Supreme Court interpreted Section 5 narrowly, stating that "the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation". In other words, the amendment authorizes Congress to pass laws only to combat violations of the rights protected in other sections.[176]

In Katzenbach v. Morgan (1966),[177] the Court upheld Section 4(e) of the Voting Rights Act of 1965, which prohibits certain forms of literacy requirements as a condition to vote, as a valid exercise of Congressional power under Section 5 to enforce the Equal Protection Clause. The Court ruled that Section 5 enabled Congress to act both remedially and prophylactically to protect the rights guaranteed by the amendment.[178] However, in City of Boerne v. Flores (1997),[179] the Court narrowed Congress's enforcement power, holding that Congress may not enact legislation under Section 5 that substantively defines or interprets Fourteenth Amendment rights.[174] The Court ruled that legislation is valid under Section 5 only if there is a "congruence and proportionality" between the injury to a person's Fourteenth Amendment right and the means Congress adopted to prevent or remedy that injury.[180]

Selected Supreme Court cases

Citizenship

Privileges or immunities

Incorporation

Substantive due process

Equal protection

Apportionment of Representatives

Power of enforcement

References

Notes

  1. ^ Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)
  2. ^ Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Flagg Bros. v. Brooks, 436 U.S. 149, 166 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974)

Citations

  1. ^ "Constitution of the United States: Amendments 11–27". National Archives and Records Administration. Archived from the original on June 11, 2013. Retrieved June 11, 2013. 
  2. ^ a b Goldstone 2011, p. 22.
  3. ^ Stromberg, "A Plain Folk Perspective" (2002), p. 111.
  4. ^ Nelson, William E. (1988). The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Harvard University Press. p. 47. ISBN 9780674041424. Retrieved June 6, 2013. 
  5. ^ Stromberg, "A Plain Folk Perspective" (2002), p. 112.
  6. ^ Foner, Eric. Reconstruction. pp. 199–200. ISBN 0-8071-2234-3. 
  7. ^ Foner 1988, pp. 250–251.
  8. ^ Castel, Albert E. (1979). The Presidency of Andrew Johnson. American Presidency. Lawrence, Kan.: The Regents Press of Kansas. p. 70. ISBN 0-7006-0190-2. 
  9. ^ Castel, Albert E. (1979). The Presidency of Andrew Johnson. American Presidency. Lawrence, Kan.: The Regents Press of Kansas. p. 71. ISBN 0-7006-0190-2. 
  10. ^ Rosen, Jeffrey. The Supreme Court: The Personalities and Rivalries That Defined America, p. 79 (MacMillan 2007).
  11. ^ Newman, Roger. The Constitution and its Amendments, Vol. 4, p. 8 (Macmillan 1999).
  12. ^ Goldstone 2011, pp. 22–23.
  13. ^ Soifer, “Prohibition of Voluntary Peonage” (2012), p. 1614.
  14. ^ Foner 1988, p. 252.
  15. ^ a b c Foner 1988, p. 253.
  16. ^ James J. Kilpatrick, ed. (1961). The Constitution of the United States and Amendments Thereto. Virginia Commission on Constitutional Government. p. 44. 
  17. ^ a b Carter, Dan. When the War Was Over: The Failure of Self-Reconstruction in the South, 1865-1867, pp. 242-243 (LSU Press 1985).
  18. ^ a b Graber, "Subtraction by Addition?" (2012), pp. 1501–1502.
  19. ^ "The Civil War And Reconstruction". Retrieved October 21, 2010. 
  20. ^ "Library of Congress, Thirty-Ninth Congress Session II". Retrieved May 11, 2013. 
  21. ^ Foner 1988, p. 255.
  22. ^ Foner 1988, pp. 255–256.
  23. ^ a b "Amendment XIV". US Government Printing Office. Archived from the original on June 23, 2013. Retrieved June 23, 2013. 
  24. ^ A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875. Library of Congress. p. 707. 
  25. ^ a b Killian, Johnny H. et al. The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002. Government Printing Office. p. 31. ISBN 9780160723797. 
  26. ^ James J. Kilpatrick, ed. (1961). The Constitution of the United States and Amendments Thereto. Virginia Commission on Constitutional Government. pp. 44–45. 
  27. ^ a b Civil Rights Cases, 109 U.S. 3 (1883)
  28. ^ "Civil Rights Cases (1883)". Pearson Education, Inc., publishing as Pearson Prentice Hall. Pearson Education. 2005. Retrieved 23 October 2013. 
  29. ^ Graber, "Subtraction by Addition?" (2012), p. 1523.
  30. ^ Goldstone 2011, pp. 23–24.
  31. ^ a b Eric Foner, "The Second American Revolution", In These Times, September 1987; reprinted in Civil Rights Since 1787, ed. Jonathan Birnbaum & Clarence Taylor, NYU Press, 2000. ISBN 0814782493
  32. ^ Finkelman, Paul (2003). "John Bingham and the Background to the Fourteenth Amendment". Akron Law Review (Ssrn.com) 36 (671). Retrieved April 2, 2009. 
  33. ^ Harrell, David and Gaustad, Edwin. Unto A Good Land: A History Of The American People, Volume 1, p. 520 (Eerdmans Publishing, 2005): "The most important, and the one that has occasioned the most litigation over time as to its meaning and application, was Section One."
  34. ^ Stephenson, D. The Waite Court: Justices, Rulings, and Legacy, p. 147 (ABC-CLIO, 2003).
  35. ^ "Tsesis, Alexander, The Inalienable Core of Citizenship: From Dred Scott to the Rehnquist Court". Arizona State Law Journal, Vol. 39, 2008 (Ssrn.com). SSRN 1023809. 
  36. ^ McDonald v. Chicago, 130 S. Ct. 3020, 3060 (2010) ("This [clause] unambiguously overruled this Court's contrary holding in Dred Scott.")
  37. ^ Jones v. Mayer, 392 U.S. 409 (1968).
  38. ^ Yen, Chin-Yung. Rights of citizens and persons under the Fourteenth amendment, page 7 (New Era Printing Company 1905).
  39. ^ Messner, Emily. “Born in the U.S.A. (Part I)”, The Debate, The Washington Post (March 30, 2006).
  40. ^ Pear, Robert (August 7, 1996). "Citizenship Proposal Faces Obstacle in the Constitution". The New York Times. 
  41. ^ a b LaFantasie, Glenn (March 20, 2011) The erosion of the Civil War consensus, Salon
  42. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893 Senator Reverdy Johnson said in the debate: "Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States...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."
  43. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2897.
  44. ^ Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 572.
  45. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2890,2892-4,2896.
  46. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893. Trumbull, during the debate, said, "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." He then proceeded to expound upon what he meant by "complete jurisdiction": "Can you sue a Navajoe Indian in court?...We make treaties with them, and therefore they are not subject to our jurisdiction.... If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense?.... Would he [Sen. Doolittle] think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another?... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens."
  47. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2895. 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 U.S. possessed a "full and complete jurisdiction" over the person described in the amendment.
  48. ^ Elk v. Wilkins, 112 U.S. 94 (1884)
  49. ^ Urofsky, Melvin I.; Finkelman, Paul (2002). A March of Liberty: A Constitutional History of the United States 1 (2nd ed.). New York, NY: Oxford University Press. ISBN 0-19-512635-1. 
  50. ^ Reid, Kay (September 22, 2012). "Multilayered loyalties: Oregon Indian women as citizens of the land, their tribal nations, and the united States". Oregon Historical Quarterly.  – via HighBeam Research (subscription required). Retrieved July 18, 2013. 
  51. ^ a b Lee, Margaret. "Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents", Congressional Research Service (August 12, 2010): "Over the last decade or so, concern about illegal immigration has sporadically led to a re- examination of a long-established tenet of U.S. citizenship, codified in the Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution and §301(a) of the Immigration and Nationality Act (INA) (8 U.S.C. §1401(a)), that a person who is born in the United States, subject to its jurisdiction, is a citizen of the United States regardless of the race, ethnicity, or alienage of the parents. [...] "some scholars argue that the Citizenship Clause of the Fourteenth Amendment should not apply to the children of unauthorized aliens because the problem of unauthorized aliens did not exist at the time the Fourteenth Amendment was considered in Congress and ratified by the states."
  52. ^ Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 498. The debate on the Civil Rights Act contained the following exchange:
    Mr. Cowan: "I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?"
    Mr. Trumbull: "Undoubtedly."
    ...
    Mr. Trumbull: "I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens."
    Mr. Cowan: "The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument."
    Mr. Trumbull: "If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European."
  53. ^ Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 2891. From the debate on the Civil Rights Act:
    Mr. Cowan: "...Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to a society than I look upon Gypsies. I do not know how many my honorable friend from California looks upon Chinese, but I do know how some of his fellow citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be userful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit..."
  54. ^ Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 2893. From the debate on the Civil Rights Act:
    Mr. Johnson: "...Who is a citizen of the United States is an open question. The decision of the courts and doctrine of the commentators is, that every man who is a citizen of the State becomes ipso facto a citizen of the United States; but there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State..."
  55. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2891-2 During the debate on the Amendment, Senator John Conness of California declared, "The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law [the Civil Rights Act]; now it is proposed to incorporate that same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that 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.".
  56. ^ See veto message of the Civil Rights Bill on March 27, 1866 by President Andrew Johnson; Source at Teaching American History: Andrew Johnson, His Life and Speeches by Lillian Foster, New York: Richardson & Co., 1866.
  57. ^ Peter Grier (August 10, 2010). "14th Amendment: why birthright citizenship change 'can't be done'". Christian Science Monitor. Archived from the original on June 12, 2013. Retrieved June 12, 2013. 
  58. ^ United States v. Wong Kim Ark 169 U.S. 649 (1898)
  59. ^ Rodriguez, C.M. (2009). ""The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment" [PDF]". U. Pa. J. Const. L. 11: 1363–1475. Retrieved January 20, 2011. 
  60. ^ U.S. Department of State (February 1, 2008). "Advice about Possible Loss of U.S. Citizenship and Dual Nationality". Retrieved April 17, 2009. 
  61. ^ For example, see Perez v. Brownell, 356 U.S. 44 (1958), overruled by Afroyim v. Rusk, 387 U.S. 253 (1967)
  62. ^ Afroyim v. Rusk, 387 U.S. 253 (1967)
  63. ^ Vance v. Terrazas, 444 U.S. 252 (1980)
  64. ^ Yoo, John. "Survey of the Law of Expatriation", Memorandum Opinion for the Solicitor General" (June 12, 2002).
  65. ^ Berger, Raoul (1997). Government by Judiciary : The Transformation of the Fourteenth Amendment (2nd ed. ed.). Indianapolis: Liberty Fund. p. 58. ISBN 0865971447. 
  66. ^ a b c d e f Slaughter-House Cases, 83 U.S. 36 (1873)
  67. ^ a b Beatty, Jack (April 8, 2008). Age of Betrayal: The Triumph of Money in America, 1865-1900. New York: Vintage Books. p. 135. ISBN 1400032423. Retrieved 19 July 2013. 
  68. ^ e.g., United States v. Morrison, 529 U.S. 598 (2000)
  69. ^ Shaman, Jeffrey. Constitutional Interpretation: Illusion and Reality, p. 248 (Greenwood Publishing 2001).
  70. ^ Saenz v. Roe, 526 U.S. 489 (1999)
  71. ^ Bogen, David. Privileges and Immunities: A Reference Guide to the United States Constitution, p. 104 (Greenwood Publushing 2003).
  72. ^ Barnett, Randy. Privileges or Immunities Clause alive again.
  73. ^ Curry, James A.; Riley, Richard B.; Battiston, Richard M. (2003). "6". Constitutional Government: The American Experience. Kendall/Hunt Publishing Company. p. 210. ISBN 0-7872-9870-0. Retrieved 14 July 2013. 
  74. ^ Gupta, Gayatri (2009). "Due process". In Folsom, W. Davis; Boulware, Rick. Encyclopedia of American Business. Infobase. p. 134. 
  75. ^ a b Cord, Robert L. (1987). "The Incorporation Doctrine and Procedural Due Process Under the Fourteenth Amendment: An Overview". Brigham Young University Law Review (3): 868. Retrieved 14 July 2013. 
  76. ^ Allgeyer v. Louisiana, 169 U.S. 649 (1897)
  77. ^ a b "Due Process of Law – Substantive Due Process". West's Encyclopedia of American Law. Thomson Gale. 1998. 
  78. ^ Lochner v. New York, 198 U.S. 45 (1905)
  79. ^ Adkins v. Children's Hospital, 261 U.S. 525 (1923)
  80. ^ Meyer v. Nebraska, 262 U.S. 390 (1923)
  81. ^ "CRS Annotated Constitution". Cornell University Law School Legal Information Institute. Archived from the original on June 12, 2013. Retrieved June 12, 2013. 
  82. ^ Mugler v. Kansas, 123 U.S. 623 (1887)
  83. ^ Holden v. Hardy, 169 U.S. 366 (1898)
  84. ^ Muller v. Oregon, 208 U.S. 412 (1908)
  85. ^ Wilson v. New, 243 U.S. 332 (1917)
  86. ^ United States v. Doremus, 249 U.S. 86 (1919)
  87. ^ West Coast Hotel v. Parrish, 300 U.S. 379 (1937)
  88. ^ Griswold v. Connecticut, 381 U.S. 479 (1965)
  89. ^ "Griswold v. Connecticut". Encyclopedia of the American Constitution.  – via HighBeam Research (subscription required). January 1, 2000. Retrieved June 16, 2013. 
  90. ^ Roe v. Wade, 410 U.S. 113 (1973)
  91. ^ "Roe v. Wade 410 U.S. 113 (1973) Doe v. Bolton 410 U.S. 179 (1973)". Encyclopedia of the American Constitution.  – via HighBeam Research (subscription required). January 1, 2000. Retrieved June 16, 2013. 
  92. ^ Planned Parenthood v. Casey, 505 U.S. 833 (1992)
  93. ^ Casey, 505 U.S. at 845-846.
  94. ^ Lawrence v. Texas, 539 U.S. 558 (2003)
  95. ^ Spindelman, Marc (June 1, 2004). "Surviving Lawrence v. Texas". Michigan Law Review.  – via HighBeam Research (subscription required). Retrieved June 16, 2013. 
  96. ^ White, Bradford (2008). Procedural Due Process in Plain English. National Trust for Historic Preservation. ISBN 0-89133-573-0. 
  97. ^ See also Mathews v. Eldridge (1976).
  98. ^ Caperton v. A.T. Massey Coal Co., 556 U.S. ___ (2009)
  99. ^ Jess Bravin and Kris Maher (June 8, 2009). "Justices Set New Standard for Recusals". The Wall Street Journal. Retrieved June 9, 2009. 
  100. ^ Barron v. Baltimore, 32 U.S. 243 (1833)
  101. ^ Levy, Leonard W. "Barron v. City of Baltimore 7 Peters 243 (1833)". Encyclopedia of the American Constitution.  – via HighBeam Research (subscription required). Retrieved June 13, 2013. 
  102. ^ Foster, James C. (2006). "Bingham, John Armor". In Finkelman, Paul. Encyclopedia of American Civil Liberties. CRC Press. p. 145. 
  103. ^ Amar, Akhil Reed (1992). "The Bill of Rights and the Fourteenth Amendment". Yale Law Journal (The Yale Law Journal, Vol. 101, No. 6) 101 (6): 1193–1284. doi:10.2307/796923. JSTOR 796923. 
  104. ^ "Duncan v. Louisiana (Mr. Justice Black, joined by Mr. Justice Douglas, concurring)". Cornell Law SchoolLegal Information Institute. May 20, 1968. Retrieved April 26, 2009. 
  105. ^ a b Levy, Leonard (1970). Fourteenth Amendment and the Bill of Rights: The Incorporation Theory (American Constitutional and Legal History Series). Da Capo Press. ISBN 0-306-70029-8. 
  106. ^ 677 F.2d 957 (1982)
  107. ^ "Minneapolis & St. Louis R. Co. v. Bombolis (1916)". Supreme.justia.com. May 22, 1916. Retrieved August 1, 2010. 
  108. ^ "The Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition --> Amendments to the Constitution --> Seventh Amendment - Civil Trials". U.S. Government Printing Office. U.S. Government Printing Office. 1992. p. 1464. Retrieved 4 July 2013. 
  109. ^ Goldstone 2011, pp. 20, 23–24.
  110. ^ Failinger, Marie (2009). "Equal protection of the laws". In Schultz, David Andrew. The Encyclopedia of American Law. Infobase. pp. 152–53. 
  111. ^ Primus, Richard (May 2004). "Bolling Alone". Columbia Law Review. Retrieved 14 July 2013. 
  112. ^ Bolling v. Sharpe, 347 U.S. 497 (1954)
  113. ^ Yick Wo v. Hopkins, 118 U.S. 356 (1886).
  114. ^ a b c d e f g "Annotation 18 - Fourteenth Amendment: Section 1 – Rights Guaranteed: Equal Protection of the Laws: Scope and application state action". FindLaw for Legal Professionals - Law & Legal Information by FindLaw, a Thomson Reuters business. Retrieved 23 November 2013. 
  115. ^ a b Plyler v. Doe, 457 U.S. 202, (1982)
  116. ^ Congressional Globe, 39th Congress, 1st Session, 1033 (1866), page 2776
  117. ^ Justice Field in Wong Wing v. United States, 163 U.S. at 163 U. S. 242-243 (concurring in part and dissenting in part).
  118. ^ a b Johnson, John W. (January 1, 2001). Historic U.S. Court Cases: An Encyclopedia. Routledge. pp. 446–47. ISBN 978-0-415-93755-9. Retrieved June 13, 2013. 
  119. ^ Vile, John R., ed. (2003). "Corporations". Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues: 1789 - 2002. ABC-CLIO. p. 116. 
  120. ^ Strauder v. West Virginia, 100 U.S. 303 (1880)
  121. ^ Yick Wo v. Hopkins, 118 U.S. 356 (1886)
  122. ^ Plessy v. Ferguson, 163 U.S. 537 (1896)
  123. ^ Abrams, Eve (February 12, 2009). "Plessy/Ferguson plaque dedicated". WWNO (University New Orleans Public Radio). Retrieved April 17, 2009. 
  124. ^ Berea College v. Kentucky, 211 U.S. 45 (1908)
  125. ^ Holmes, Oliver Wendell, Jr. "274 U.S. 200: Buck v. Bell". Cornell University Law School Legal Information Institute. Archived from the original on June 12, 2013. Retrieved June 12, 2013. 
  126. ^ Brown v. Board of Education, 347 U.S. 483 (1954)
  127. ^ Patterson, James (2002). Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy (Pivotal Moments in American History). Oxford University Press. ISBN 0-19-515632-3. 
  128. ^ "Forced Busing and White Flight". Time. September 25, 1978. Retrieved June 17, 2009. 
  129. ^ Greenhouse, Linda (June 29, 2007). "Justices Limit the Use of Race in School Plans for Integration". The New York Times. Retrieved June 30, 2013. 
  130. ^ "Plyler v. Doe". The Oyez Project at IIT Chicago-Kent College of Law. The Oyez Project at IIT Chicago-Kent College of Law. Retrieved 23 November 2013. 
  131. ^ Hernandez v. Texas, 347 U.S. 475 (1954)
  132. ^ United States v. Virginia, 518 U.S. 515 (1996)
  133. ^ Levy v. Louisiana, 361 U.S. 68 (1968)
  134. ^ Gerstmann, Evan (1999). The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. University Of Chicago Press. ISBN 0-226-28860-9. 
  135. ^ 438 U.S. 265 (1978)
  136. ^ Supreme Court Drama: Cases That Changed America (2001). "Regents of the University of California v. Bakke 1978". Supreme Court Drama: Cases that Changed America.  – via HighBeam Research (subscription required). Retrieved 27 June 2013. 
  137. ^ 539 U.S. 244 (2003)
  138. ^ 539 U.S. 306 (2003)
  139. ^ Alger, Jonathan (October 11, 2003). "Grutter/Gratz and Beyone: the Diversity Leadership Challenge". University of Michigan. Retrieved June 30, 2013. 
  140. ^ Eckes, Susan B. (January 1, 2004). "Race-Conscious Admissions Programs: Where Do Universities Go From Gratz and Grutter?". Journal of Law and Education.  – via HighBeam Research (subscription required). Retrieved 27 June 2013. 
  141. ^ Howe, Amy (June 24, 2013). "Finally! The Fisher decision in Plain English". SCOTUSblog. Retrieved June 30, 2013. 
  142. ^ Reed v. Reed, 404 U.S. 71 (1971)
  143. ^ a b "Reed v. Reed 1971". Supreme Court Drama: Cases that Changed America.  – via HighBeam Research (subscription required). January 1, 2001. Retrieved June 12, 2013. 
  144. ^ Craig v. Boren, 429 U.S. 190 (1976)
  145. ^ Karst, Kenneth L. (January 1, 2000). "Craig v. Boren 429 U.S. 190 (1976)". Encyclopedia of the American Constitution.  – via HighBeam Research (subscription required). Retrieved June 16, 2013. 
  146. ^ Wesberry v. Sanders, 376 U.S. 1 (1964).
  147. ^ Reynolds v. Sims, 377 U.S. 533 (1964).
  148. ^ Epstein, Lee; Walker, Thomas G. (2007). Constitutional Law for a Changing America: Rights, Liberties, and Justice (6th ed.). Washington, D.C.: CQ Press. p. 775. ISBN 0-87187-613-2. "Wesberry and Reynolds made it clear that the Constitution demanded population-based representational units for the U.S. House of Representatives and both houses of state legislatures...." 
  149. ^ Shaw v. Reno, 509 U.S. 630 (1993)
  150. ^ Aleinikoff, T. Alexander; Samuel Issacharoff (1993). "Race and Redistricting: Drawing Constitutional Lines after Shaw v. Reno". Michigan Law Review (Michigan Law Review, Vol. 92, No. 3) 92 (3): 588–651. doi:10.2307/1289796. JSTOR 1289796. 
  151. ^ Bush v. Gore, 531 U.S. 98 (2000)
  152. ^ "Bush v. Gore". Encyclopaedia Britannica. Retrieved June 12, 2013. 
  153. ^ League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006)
  154. ^ Daniels, Gilda R. (March 22, 2012). "Fred Gray: life, legacy, lessons". Faulkner Law Review.  – via HighBeam Research (subscription required). Retrieved June 12, 2013. 
  155. ^ a b c d Dunn, Christopher (28 April 2009). "Column: Applying the Constitution to Private Actors (New York Law Journal)". New York Civil Liberties Union (NYCLU) - American Civil Liberties Union of New York State. Retrieved 23 November 2013. 
  156. ^ a b Jackson v. Metropolitan Edison Co, 419 U.S. 345 (1974)
  157. ^ Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)
  158. ^ Flagg Bros. v. Brooks, 436 U.S. 149 (1978)
  159. ^ Friedman, Walter (January 1, 2006). "Fourteenth Amendment". Encyclopedia of African-American Culture and History.  – via HighBeam Research (subscription required). Retrieved June 12, 2013. 
  160. ^ Chin, Gabriel J. (2004). "Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth?". Georgetown Law Journal 92: 259. 
  161. ^ Richardson v. Ramirez, 418 U.S. 24 (1974)
  162. ^ "Sections 3 and 4: Disqualification and Public Debt". Caselaw.lp.findlaw.com. June 5, 1933. Retrieved August 1, 2010. 
  163. ^ "Pieces of History: General Robert E. Lee's Parole and Citizenship". Prologue Magazine (The National Archives) 37 (1). 2005. 
  164. ^ Goodman, Bonnie K. (2006). "History Buzz: October 16, 2006: This Week in History". History News Network. Retrieved June 18, 2009. 
  165. ^ "Chapter 157: The Oath As Related To Qualifications", Cannon's Precedents of the U.S. House of Representatives 6, January 1, 1936 
  166. ^ "Annotation 37 - Fourteenth Amendment Sections 3 and 4 Disqualification and Public Debt". FindLaw. Retrieved 17 October 2013. 
  167. ^ "Perry v. United States 294 U.S. 330 (1935) at 354". Findlaw.com. Retrieved August 1, 2010. 
  168. ^ Liptak, Adam (July 24, 2011). "The 14th Amendment, the Debt Ceiling and a Way Out". The New York Times. Retrieved July 30, 2011. "In recent weeks, law professors have been trying to puzzle out the meaning and relevance of the provision. Some have joined Mr. Clinton in saying it allows Mr. Obama to ignore the debt ceiling. Others say it applies only to Congress and only to outright default on existing debts. Still others say the president may do what he wants in an emergency, with or without the authority of the 14th Amendment." 
  169. ^ a b Balkin, Jack M.. "3 ways Obama could bypass Congress". CNN. Retrieved 2013-10-16. 
  170. ^ "Our National Debt 'Shall Not Be Questioned,' the Constitution Says". The Atlantic. May 4, 2011. 
  171. ^ Sahadi, Jeanne. "Is the debt ceiling unconstitutional?". CNN Money. Retrieved January 2, 2013. 
  172. ^ Rosen, Jeffrey. "How Would the Supreme Court Rule on Obama Raising the Debt Ceiling Himself?". The New Republic. Retrieved July 29, 2011. 
  173. ^ Chemerinsky, Erwin (July 29, 2011). "The Constitution, Obama and raising the debt ceiling". Los Angeles Times. Retrieved July 30, 2011. 
  174. ^ a b Engel, Steven A. (October 1, 1999). "The McCulloch theory of the Fourteenth Amendment: City of Boerne v. Flores and the original understanding of section 5". Yale Law Journal.  – via HighBeam Research (subscription required). Retrieved June 12, 2013. 
  175. ^ Kovalchick, Anthony (15 Feb 2007). "Judicial Usurpation of Legislative Power: Why Congress Must Reassert its Power to Determine What is Appropriate Legislation to Enforce the Fourteenth Amendment". Chapman Law Review 10 (1). Retrieved 19 July 2013. 
  176. ^ "FindLaw: U.S. Constitution: Fourteenth Amendment, p. 40". Caselaw.lp.findlaw.com. Retrieved August 1, 2010. 
  177. ^ Katzenbach v. Morgan, 384 U.S. 641 (1966)
  178. ^ Eisenberg, Theodore (January 1, 2000). "Katzenbach v. Morgan 384 U.S. 641 (1966)". Encyclopedia of the American Constitution.  – via HighBeam Research (subscription required). Retrieved June 12, 2013. 
  179. ^ City of Boerne v. Flores, 521 U.S. 507 (1997)
  180. ^ City of Boerne v. Flores, 521 U.S. 507 (1997)

Bibliography

Further reading

External links