Fourteenth Amendment to the United States Constitution

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The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Its first section, which has frequently been the subject of lawsuits, 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 Citizenship Clause is followed by the Privileges or Immunities Clause, which 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 in the United States, and for many other decisions rejecting irrational or unnecessary discrimination against people belonging to various groups. The second, third, and fourth sections of the amendment are seldom, if ever, litigated; the fifth section gives Congress enforcement power.

Contents

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]

Citizenship and civil rights

The two pages of the Fourteenth Amendment in the National Archives

Background

Section 1 formally defines United States citizenship and protects individual civil and political rights from being abridged or denied by any state. In effect, it 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.[2][3] 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. The framers of the Fourteenth Amendment wanted this principle enshrined into the Constitution to protect the new Civil Rights Act from being declared unconstitutional by the Supreme Court and to prevent a future Congress from altering it by a mere majority vote.[4][5]

This section was also in response to the Black Codes that southern states had passed in the wake of the Thirteenth Amendment, which abolished slavery in the United States.[6] The Black Codes attempted to return former 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.[7]

Finally, this section was in response to violence against black people within the southern states. A Joint Committee on Reconstruction found that only a Constitutional amendment could protect black people's rights and welfare within those states.[8] This section has been the most frequently litigated part of the amendment,[9] and this amendment has been the most frequently litigated part of the Constitution.[10]

Citizenship Clause

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

There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment.[11][12] During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause[13]—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."[14] According to historian Glenn W. LaFantasie of Western Kentucky University, "A good number of his fellow senators supported his view of the citizenship clause."[13] Others also agreed that the children of ambassadors and foreign ministers were to be excluded.[15][16] However, concerning children born in the United States to parents who are not citizens of the United States (and not foreign diplomats), three Senators, including Senate Judiciary Committee Chairman Lyman Trumbull, 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 them at birth, and no Senator offered a contrary opinion.[17][18][19]

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,[20] but 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.[21][22] In Elk v. Wilkins (1884),[23] 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.[24]

The clause's meaning was tested again in United States v. Wong Kim Ark (1898).[25] 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.[26] In 2010, Republican Senators discussed revising the amendment's providing of birthright citizenship 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.[27]

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.[28]

For much of the country's history, voluntary acquisition or exercise of a foreign citizenship was considered sufficient cause for revocation of national citizenship.[29] 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),[30] as well as Vance v. Terrazas (1980),[31] holding that the Citizenship Clause of the Fourteenth Amendment barred the Congress from revoking citizenship.

Privileges or Immunities Clause

Main article: Privileges or Immunities Clause

In the Slaughter-House Cases (1873), the Supreme Court ruled that the amendment's Privileges or Immunities Clause was limited to "privileges or immunities" granted to citizens by the federal government by virtue of national citizenship.[32] The Court further held in the Civil Rights Cases (1883)[33] that the amendment was limited to "state action" and, therefore, did not authorize the Congress to outlaw racial discrimination on the part of private individuals or organizations. Neither of these decisions has been overruled and they have been specifically reaffirmed several times.[34]

In Saenz v. Roe (1999),[35] the Court ruled that the "right to travel" has a component 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."

Due Process Clause

Main article: Due Process Clause

The Due Process Clause of the amendment protects both procedural due process—the guarantee of a fair legal process—and substantive due process—the guarantee that the fundamental rights of citizens will not be encroached on by government.[36]

Beginning with Allgeyer v. Louisiana (1897),[37] the Court interpreted the Due Process Clause as providing substantive protection to private contracts and thus prohibiting a variety of social and economic regulation, under what was referred to as "freedom of contract".[38] Thus, the Court struck down a law decreeing maximum hours for workers in a bakery in Lochner v. New York (1905)[39] and struck down a minimum wage law in Adkins v. Children's Hospital (1923).[40] In Meyer v. Nebraska (1923),[41] 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."[42]

However, the Court did uphold some economic regulation such as state prohibition laws (Mugler v. Kansas, 1887),[43] laws declaring maximum hours for mine workers (Holden v. Hardy, 1898),[44] laws declaring maximum hours for female workers (Muller v. Oregon, 1908),[45] President Wilson's intervention in a railroad strike (Wilson v. New, 1917),[46] as well as federal laws regulating narcotics (United States v. Doremus, 1919).[47] The Court repudiated the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937).[48]

By the 1960s, the Court had extended its interpretation of substantive due process to include rights and freedoms that are not specifically mentioned in the Constitution but that, according to the Court, extend or derive from existing rights.[38] The Court has also significantly expanded the reach of procedural due process, requiring some sort of hearing before the government may terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits.[49][50]

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.[51] While Justice William O. Douglas wrote for the majority that the right to privacy was found in the "penumbras" of 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.[52]

The right to privacy became the basis for Roe v. Wade (1973),[53] in which the Court invalidated a Texas law forbidding abortion except to save the mother's life. Like Goldberg and Harlan's dissents 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 became one of the most controversial in the Court's history.[54] In Planned Parenthood v. Casey (1992),[55] the Court decided that "the essential holding of Roe v. Wade should be retained and once again reaffirmed."[56] In Lawrence v. Texas (2003),[57] the Court found that a Texas law against same-sex sexual intercourse violated the right to privacy.[58]

The Court has ruled that, in certain circumstances, the Due Process Clause requires a judge to recuse himself on account of concern of there being a conflict of interest. For example, in Caperton v. A.T. Massey Coal Co. (2009),[59] 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.[60]

Incorporation

Main article: Incorporation of the Bill of Rights

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),[61] the Supreme Court unanimously ruled that the Bill of Rights restrained only the federal government, not the states.[62] Under the Fourteenth Amendment, most provisions of the Bill of Rights have been held to apply to the states as well as the federal government, a process known as incorporation.

Whether this incorporation was intended by the amendment's framers, such as John Bingham, has been debated by legal historians.[63] 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.[64]

By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states.[65] 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.[66] 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.[67] The Seventh Amendment has been held not to be applicable to the states.[66][68]

Equal Protection Clause

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

The Equal Protection Clause was added to deal with 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.[69] The clause mandates that individuals in similar situations be treated equally by state and federal laws.[70]

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."[71]

This dictum, which established that corporations enjoyed personhood under the Equal Protection Clause, was repeatedly reaffirmed by later courts.[71] 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.[72]

In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia, 1880)[73] or discriminating against Chinese Americans in the regulation of laundry businesses (Yick Wo v. Hopkins, 1886),[74] as violations of the Equal Protection Clause. However, in Plessy v. Ferguson (1896),[75] 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.[76]

The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908),[77] 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."[78]

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.[79] 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.[80] This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation (see Milliken v. Bradley, 1974).[81]

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.[82] 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;[83] Levy v. Louisiana, 1968[84]).[85]

Reed v. Reed (1971),[86] 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.[87] In Craig v. Boren (1976),[88] the Court ruled that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review.[89] Reed and Craig later served as precedents to strike down a number of state laws discriminating by gender.[87]

Since Wesberry v. Sanders (1964)[90] and Reynolds v. Sims (1964),[91] 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".[92] The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993),[93] the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic underrepresentation in the state's congressional delegations.[94]

The Equal Protection Clause served as the basis for the decision in Bush v. Gore (2000),[95] 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.[96] In League of United Latin American Citizens v. Perry (2006),[97] 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.[98]

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 in 1965.[99] 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.[5]

Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment,[100] 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.[101]

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.[102] In 1975, the citizenship of Confederate general Robert E. Lee was restored by a joint congressional resolution, retroactive to June 13, 1865.[103] In 1978, pursuant to Section 3, the Congress posthumously removed the service ban from Confederate president Jefferson Davis.[104]

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.[105]

Validity of public debt

Section 4 confirmed the legitimacy of all U.S. 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.[106] In Perry v. United States (1935), the Supreme Court ruled that under Section 4 voiding a United States bond "went beyond the congressional power."[107]

The debt-ceiling crisis in 2011 raised the question of what powers Section 4 gives to the President, an issue that remains unsettled.[108] 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).[109][110] 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.[111] 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]".[112]

Power of enforcement

Main article: Congressional power of enforcement

Section 5 enables Congress to pass laws enforcing the Amendment's provisions. In the Civil Rights Cases (1883),[33] 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, Congress could only pass laws intended to combat violations of the rights enumerated in other sections.[113] In a 1966 decision, Katzenbach v. Morgan,[114] the Court upheld a section of the Voting Rights Act of 1965, ruling that Section 5 enabled Congress to act both remedially and prophylactically to protect rights enumerated in the amendment.[115] In City of Boerne v. Flores (1997),[116] the Court rejected Congress' ability to define or interpret constitutional rights via Section 5.[117]

Proposal and ratification

  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

The 39th United States Congress proposed the Fourteenth Amendment on June 13, 1866. Ratification of the Fourteenth Amendment was bitterly contested: all the Southern state legislatures, with the exception of Tennessee, refused to ratify the amendment. 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.[118]

On March 2, 1867, the Congress passed a law that required any formerly Confederate state to ratify the Fourteenth Amendment before "said State shall be declared entitled to representation in Congress".[119]

By July 9, 1868, three-fourths of the states (28 of 37) ratified the amendment:[120]

  1. Connecticut (June 25, 1866)
  2. New Hampshire (July 6, 1866)
  3. Tennessee (July 19, 1866)
  4. New Jersey (September 11, 1866)*
  5. Oregon (September 19, 1866)
  6. Vermont (October 30, 1866)
  7. Ohio (January 4, 1867)*
  8. New York (January 10, 1867)
  9. Kansas (January 11, 1867)
  10. Illinois (January 15, 1867)
  11. West Virginia (January 16, 1867)
  12. Michigan (January 16, 1867)
  13. Minnesota (January 16, 1867)
  14. Maine (January 19, 1867)
  15. Nevada (January 22, 1867)
  16. Indiana (January 23, 1867)
  17. Missouri (January 25, 1867)
  18. Rhode Island (February 7, 1867)
  19. Wisconsin (February 7, 1867)
  20. Pennsylvania (February 12, 1867)
  21. Massachusetts (March 20, 1867)
  22. Nebraska (June 15, 1867)
  23. Iowa (March 16, 1868)
  24. Arkansas (April 6, 1868, after having rejected it on December 17, 1866)
  25. Florida (June 9, 1868, after having rejected it on December 6, 1866)
  26. North Carolina (July 4, 1868, after having rejected it on December 14, 1866)
  27. Louisiana (July 9, 1868, after having rejected it on February 6, 1867)
  28. South Carolina (July 9, 1868, after having rejected it on December 20, 1866)

*Ohio passed a resolution that purported to withdraw its ratification on January 15, 1868. The New Jersey legislature also tried to rescind its ratification on February 20, 1868, citing procedural problems with the amendment's congressional passage, including that specific states were unlawfully denied representation in the House and the Senate at the time.[121] The New Jersey governor had vetoed his state's withdrawal on March 5, and the legislature overrode the veto on March 24.

On July 20, 1868, Secretary of State William H. Seward certified that the amendment had become part of the Constitution if the rescissions were ineffective, and presuming also that the later ratifications by states whose governments had been reconstituted superseded the initial rejection of the prior state legislatures.[122] The Congress responded on the following day, declaring that the amendment was part of the Constitution and ordering Seward to promulgate the amendment.

Meanwhile, two additional states had ratified the amendment:

  1. Alabama (July 13, 1868, the date the ratification was approved by the governor)
  2. Georgia (July 21, 1868, after having rejected it on November 9, 1866)

Thus, on July 28, Seward was able to certify unconditionally that the amendment was part of the Constitution without having to endorse the Congress's assertion that the withdrawals were ineffective.

After the Democrats won the legislative election in Oregon, they passed a rescission of the Unionist Party's previous adoption of the amendment. The rescission was ignored as too late, as it came on October 15, 1868. The amendment has since been ratified by all of the 37 states that were in the Union in 1868, including Ohio, New Jersey, and Oregon re-ratifying after their rescissions:[123]

  1. Virginia (October 8, 1869, after having rejected it on January 9, 1867)
  2. Mississippi (January 17, 1870, after having rejected it on January 31, 1868)
  3. Texas (February 18, 1870, after having rejected it on October 27, 1866)
  4. Delaware (February 12, 1901, after having rejected it on February 7, 1867)
  5. Maryland (April 4, 1959, after having rejected it on March 23, 1867)
  6. California (March 18, 1959)
  7. Oregon (1973, after withdrawing it on October 15, 1868)
  8. Kentucky (May 6, 1976, after having rejected it on January 8, 1867)
  9. New Jersey (2003, after having rescinded on February 20, 1868)[124]
  10. Ohio (2003, after having rescinded on January 15, 1868)

Selected Supreme Court cases

Citizenship

Privileges or immunities

Procedural due process/Incorporation

Substantive due process

Equal protection

Apportionment of Representatives

Power of enforcement

References

  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. ^ "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. 
  3. ^ McDonald v. Chicago, 130 S. Ct. 3020, 3060 (2010) ("This [clause] unambiguously overruled this Court's contrary holding in Dred Scott.")
  4. ^ Goldstone 2011, pp. 23–24.
  5. ^ 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
  6. ^ Duhaime, Lloyd. "Legal Definition of Black Code". duhaime.org. Retrieved March 25, 2009. 
  7. ^ Foner, Eric. Reconstruction. pp. 199–200. ISBN 0-8071-2234-3. 
  8. ^ "Finkelman, Paul, John Bingham and the Background to the Fourteenth Amendment". Akron Law Review, Vol. 36, No. 671, 2003 (Ssrn.com). April 2, 2009. SSRN 1120308. 
  9. ^ 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."
  10. ^ Stephenson, D. The Waite Court: Justices, Rulings, and Legacy, p. 147 (ABC-CLIO, 2003).
  11. ^ Messner, Emily. “Born in the U.S.A. (Part I)”, The Debate, The Washington Post (March 30, 2006).
  12. ^ Robert Pear (August 7, 1996). "Citizenship Proposal Faces Obstacle in the Constitution". The New York Times. 
  13. ^ a b LaFantasie, Glenn (March 20, 2011) The erosion of the Civil War consensus, Salon
  14. ^ 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."
  15. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2897.
  16. ^ Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 572.
  17. ^ 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."
  18. ^ 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.".
  19. ^ See veto message by President Andrew Johnson.
  20. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2890,2892-4,2896.
  21. ^ 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."
  22. ^ 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.
  23. ^ Elk v. Wilkins, 112 U.S. 94 (1884)
  24. ^ 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. 
  25. ^ United States v. Wong Kim Ark 169 U.S. 649 (1898)
  26. ^ 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. 
  27. ^ "14th Amendment: why birthright citizenship change 'can't be done'". Christian Science Monitor. August 10, 2010. Archived from the original on June 12, 2013. Retrieved June 12, 2013. 
  28. ^ U.S. Department of State (February 1, 2008). "Advice about Possible Loss of U.S. Citizenship and Dual Nationality". Retrieved April 17, 2009. 
  29. ^ For example, see Perez v. Brownell, 356 U.S. 44 (1958), overruled by Afroyim v. Rusk, 387 U.S. 253 (1967)
  30. ^ Afroyim v. Rusk, 387 U.S. 253 (1967)
  31. ^ Vance v. Terrazas, 444 U.S. 252 (1980)
  32. ^ Slaughter-House Cases, 83 U.S. 36 (1873)
  33. ^ a b Civil Rights Cases, 109 U.S. 3 (1883)
  34. ^ e.g., United States v. Morrison, 529 U.S. 598 (2000)
  35. ^ Saenz v. Roe, 526 U.S. 489 (1999)
  36. ^ Gupta, Gayatri (2009). "Due process". In Folsom, W. Davis; Boulware, Rick. Encyclopedia of American Business. Infobase. p. 134. 
  37. ^ Allgeyer v. Louisiana, 169 U.S. 649 (1897)
  38. ^ a b "Due Process of Law – Substantive Due Process". West's Encyclopedia of American Law. Thomson Gale. 1998. 
  39. ^ Lochner v. New York, 198 U.S. 45 (1905)
  40. ^ Adkins v. Children's Hospital, 261 U.S. 525 (1923)
  41. ^ Meyer v. Nebraska, 262 U.S. 390 (1923)
  42. ^ "CRS Annotated Constitution". Cornell University Law School Legal Information Institute. Archived from the original on June 12, 2013. Retrieved June 12, 2013. 
  43. ^ Mugler v. Kansas, 123 U.S. 623 (1887)
  44. ^ Holden v. Hardy, 169 U.S. 366 (1898)
  45. ^ Muller v. Oregon, 208 U.S. 412 (1908)
  46. ^ Wilson v. New, 243 U.S. 332 (1917)
  47. ^ United States v. Doremus, 249 U.S. 86 (1919)
  48. ^ West Coast Hotel v. Parrish, 300 U.S. 379 (1937)
  49. ^ White, Bradford (2008). Procedural Due Process in Plain English. National Trust for Historic Preservation. ISBN 0-89133-573-0. 
  50. ^ See also Mathews v. Eldridge (1976).
  51. ^ Griswold v. Connecticut, 381 U.S. 479 (1965)
  52. ^ "Griswold v. Connecticut". Encyclopedia of the American Constitution.  – via HighBeam Research (subscription required). January 1, 2000. Retrieved June 16, 2013. 
  53. ^ Roe v. Wade, 410 U.S. 113 (1973)
  54. ^ "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. 
  55. ^ Planned Parenthood v. Casey, 505 U.S. 833 (1992)
  56. ^ Casey, 505 U.S. at 845-846.
  57. ^ Lawrence v. Texas, 539 U.S. 558 (2003)
  58. ^ Marc Spindelman (June 1, 2004). "Surviving Lawrence v. Texas". Michigan Law Review.  – via HighBeam Research (subscription required). Retrieved June 16, 2013. 
  59. ^ Caperton v. A.T. Massey Coal Co., 556 U.S. ___ (2009)
  60. ^ Jess Bravin and Kris Maher (June 8, 2009). "Justices Set New Standard for Recusals". The Wall Street Journal. Retrieved June 9, 2009. 
  61. ^ Barron v. Baltimore, 32 U.S. 243 (1833)
  62. ^ Leonard W. Levy. "Barron v. City of Baltimore 7 Peters 243 (1833)". Encyclopedia of the American Constitution.  – via HighBeam Research (subscription required). Retrieved June 13, 2013. 
  63. ^ Foster, James C. (2006). "Bingham, John Armor". In Finkleman, Paul. Encyclopedia of American Civil Liberties. CRC Press. p. 145. 
  64. ^ 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. 
  65. ^ "Duncan v. Louisiana (Mr. Justice Black, joined by Mr. Justice Douglas, concurring)". Cornell Law School – Legal Information Institute. May 20, 1968. Retrieved April 26, 2009. 
  66. ^ 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. 
  67. ^ 677 F.2d 957 (1982)
  68. ^ "Minneapolis & St. Louis R. Co. v. Bombolis (1916)". Supreme.justia.com. May 22, 1916. Retrieved August 1, 2010. 
  69. ^ Goldstone 2011, pp. 20, 23–24.
  70. ^ Failinger, Marie (2009). "Equal protection of the laws". In Schultz, David Andrew. The Encyclopedia of American Law. Infobase. pp. 152–53. 
  71. ^ 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. 
  72. ^ Vile, John R., ed. (2003). "Corporations". Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues: 1789 - 2002. ABC-CLIO. p. 116. 
  73. ^ Strauder v. West Virginia, 100 U.S. 303 (1880)
  74. ^ Yick Wo v. Hopkins, 118 U.S. 356 (1886)
  75. ^ Plessy v. Ferguson, 163 U.S. 537 (1896)
  76. ^ Abrams, Eve (February 12, 2009). "Plessy/Ferguson plaque dedicated". WWNO (University New Orleans Public Radio). Retrieved April 17, 2009. 
  77. ^ Berea College v. Kentucky, 211 U.S. 45 (1908)
  78. ^ Oliver Wendell Holmes, 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. 
  79. ^ Brown v. Board of Education, 347 U.S. 483 (1954)
  80. ^ 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. 
  81. ^ "Forced Busing and White Flight". Time. September 25, 1978. Retrieved June 17, 2009. 
  82. ^ Hernandez v. Texas, 347 U.S. 475 (1954)
  83. ^ United States v. Virginia, 518 U.S. 515 (1996)
  84. ^ Levy v. Louisiana, 361 U.S. 68 (1968)
  85. ^ 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. 
  86. ^ Reed v. Reed, 404 U.S. 71 (1971)
  87. ^ 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. 
  88. ^ Craig v. Boren, 429 U.S. 190 (1976)
  89. ^ Kenneth L. Karst (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. 
  90. ^ Wesberry v. Sanders, 376 U.S. 1 (1964).
  91. ^ Reynolds v. Sims, 377 U.S. 533 (1964).
  92. ^ 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...." 
  93. ^ Shaw v. Reno, 509 U.S. 630 (1993)
  94. ^ 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. 
  95. ^ Bush v. Gore, 531 U.S. 98 (2000)
  96. ^ "Bush v. Gore". Encyclopaedia Britannica. Retrieved June 12, 2013. 
  97. ^ League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006)
  98. ^ Gilda R. Daniels (March 22, 2012). "Fred Gray: life, legacy, lessons". Faulkner Law Review.  – via HighBeam Research (subscription required). Retrieved June 12, 2013. 
  99. ^ Walter Friedman (January 1, 2006). "Fourteenth Amendment". Encyclopedia of African-American Culture and History.  – via HighBeam Research (subscription required). Retrieved June 12, 2013. 
  100. ^ 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. 
  101. ^ Richardson v. Ramirez, 418 U.S. 24 (1974)
  102. ^ "Sections 3 and 4: Disqualification and Public Debt". Caselaw.lp.findlaw.com. June 5, 1933. Retrieved August 1, 2010. 
  103. ^ "Pieces of History: General Robert E. Lee's Parole and Citizenship". Prologue Magazine (The National Archives) 37 (1). 2005. 
  104. ^ Goodman, Bonnie K. (2006). "History Buzz: October 16, 2006: This Week in History". History News Network. Retrieved June 18, 2009. 
  105. ^ "Chapter 157: The Oath As Related To Qualifications", Cannon's Precedents of the U.S. House of Representatives 6, January 1, 1936 
  106. ^ For more on Section 4 go to Findlaw.com
  107. ^ "294 U.S. 330 at 354". Findlaw.com. Retrieved August 1, 2010. 
  108. ^ 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." 
  109. ^ "Our National Debt 'Shall Not Be Questioned,' the Constitution Says". The Atlantic. May 4, 2011. 
  110. ^ Sahadi, Jeanne. "Is the debt ceiling unconstitutional?". CNN Money. Retrieved January 2, 2013. 
  111. ^ Rosen, Jeffrey. "How Would the Supreme Court Rule on Obama Raising the Debt Ceiling Himself?". The New Republic. Retrieved July 29, 2011. 
  112. ^ Chemerinsky, Erwin (July 29, 2011). "The Constitution, Obama and raising the debt ceiling". Los Angeles Times. Retrieved July 30, 2011. 
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  114. ^ Katzenbach v. Morgan, 384 U.S. 641 (1966)
  115. ^ Theodore Eisenberg (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. 
  116. ^ City of Boerne v. Flores, 521 U.S. 507 (1997)
  117. ^ Steven A. Engel (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. 
  118. ^ "The Civil War And Reconstruction". Retrieved October 21, 2010. 
  119. ^ "Library of Congress, Thirty-Ninth Congress Session II". Retrieved May 11, 2013. 
  120. ^ Mount, Steve (January 2007). "Ratification of Constitutional Amendments". Retrieved February 24, 2007. 
  121. ^ Documentary History of the Constitution of the United States, Vol. 5. Department of State. pp. 533–543. ISBN 0-8377-2045-1. 
  122. ^ A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875. Library of Congress. p. 707. 
  123. ^ Chin, Gabriel J.; Abraham, Anjali (2008). "Beyond the Supermajority: Post-Adoption Ratification of the Equality Amendments". Arizona Law Review 50: 25. 
  124. ^ P.L. 2003, Joint Resolution No. 2; 4/23/03

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