The 14th Amendment

10 Key excerpts on "The 14th Amendment"

• 

  eBook - ePub

  The Constitution Explained

  A Guide for Every American

  • David L. Hudson(Author)
  • 2022(Publication Date)
  • Visible Ink Press

    (Publisher)

  Slaughter-House Cases, the U.S. Supreme Court interpreted the Privileges and Immunities Clause very narrowly. The High Court ruled that the Privileges and Immunities Clause applied only to certain rights people had as citizens of the federal government, or national citizens. The Court ruled that the states did not have to provide its citizens the same “privileges and immunities” as the federal government provided national citizens. The net effect of this ruling was that the Fourteenth Amendment did not automatically extend the protections of the Bill of Rights to the states. It would take Supreme Court decisions throughout the twentieth century to undo the damage caused by this decision.

  The last two clauses of the first section of the Fourteenth Amendment carry enormous significance. They are the Due Process and Equal Protection Clauses. Due process, a principle that came from English law, means that the government must obey the law and act in a reasonable fashion. Today due process is divided into two concepts: procedural due process and substantive due process.

  Procedural due process means that the state must use fair procedures when limiting a person’s life, liberty, or property interests. Substantive due process means that the substance of law limiting these interests must be reasonable. Meanwhile, equal protection generally means that the government may not pass a law that discriminates against an individual or certain segment of society. For example, a law prohibiting interracial marriages treats people differently based on race and violates the Equal Protection Clause.

  No Protections against State Governments

  The key significance of the Fourteenth Amendment is that it extends the vast majority of the freedoms found in the Bill of Rights to the states. In other words, it serves as the vehicle through which the Bill of Rights applies not just to the federal government but also to state and local governments.

  Recall that in 1791, the states ratified, or officially approved, ten amendments to the U.S. Constitution known as the Bill of Rights. However, Congress did not adopt all of the proposals submitted by Representative James Madison (1751–1836). One key omission was the amendment that Madison had called “the most worthy.” It read:

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Supreme Court For Dummies

  • Lisa Paddock(Author)
  • 2011(Publication Date)
  • For Dummies

    (Publisher)

  Two years earlier, Congress had passed the Civil Rights Act of 1866 over President Andrew Johnson’s veto — the first major law to override a presidential veto. Intended to counteract the Black Codes and nullify Dred Scott, the act declared that persons born in the United States (except tribal Indians) were U.S. citizens entitled to “full and equal benefit of laws.” The act spelled out the rights to be protected, including the rights to make and enforce contracts, to sue, to give evidence, to inherit, and to purchase, lease, and convey property. Even though the act was specifically amended in the House to exclude application to state segregation statutes, it was condemned by Johnson as an invasion of states’ rights. The real problem, though, was that the Civil Rights Act of 1866 was of doubtful constitutionality. Ratification of the Fourteenth Amendment put that issue to rest. In 1868, the notion of equality encompassed the concepts of privileges and immunities, due process, and equal protection, all of which were lumped together in Section 2 of the amendment. The initial purpose of all three was to protect the rights of African-Americans, but as written, the Due Process and Equal Protection Clauses apply to all persons — including noncitizens. One of the supporters of the Fourteenth Amendment, Senator Jacob M. Howard, Republican of Kansas, put the matter this way: The Amendment promised to give “to the humblest, the poorest, the most despised of the race, the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” The lack of limitation on who was supposed to benefit from due process and equal protection — in contrast to the privileges and immunities extended to “citizens of the United States” — could be the product of sloppy draftsmanship but more likely was a deliberate omission

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Living Originalism

  • Jack M. Balkin(Author)
  • 2011(Publication Date)
  • Belknap Press

    (Publisher)

  As we saw in Chapter 10, the citizenship clause was added at the last minute for much the same reason. 142 In offering this clarification, the framers of the Fourteenth Amend-ment probably cared less about future judicial decisions than about Equality before the Law 253 Congress’s section 5 powers to enforce equality in the immediate after-math of the Civil War. One cannot understand the choices made in drafting the text without recognizing that Congress believed it would take the lead in enforcing the amendment through new civil rights acts. As Chapter 10 explained, a key purpose of the Fourteenth Amendment was to provide constitutional backup to the 1866 Civil Rights Act, which secured equal civil rights for blacks and whites. In the debates over the 1866 Act, James Wilson, the chairman of the House Judiciary Committee, argued that the Fifth Amendment’s due process clause gave Congress the power to pass the Civil Rights Bill. 143 Although most con-gressional Republicans believed the act was perfectly constitutional (to enforce either the Fifth Amendment or the Thirteenth Amendment), adding an explicit guarantee of equal protection of the laws to section 1 made unmistakably clear that Congress had power to enact the measure under section 5. In fact, Congress repassed the text of the 1866 Act (with a few changes) in the Enforcement Act of 1870, invoking its new powers under the Fourteenth Amendment. 144 Congress was also particularly concerned about selective protection by law enforcement officials in Southern states. Immediately following the Civil War, groups of marauding Southern whites terrorized blacks and white unionists; victims were murdered, raped, and lynched; their property was stolen and their houses were burned. Local law enforce-ment officials, either frightened or complicit, simply looked the other way.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  The Country Lawyer

  Essays in Democracy

  • F. Lyman Windolph(Author)
  • 2016(Publication Date)
  • University of Pennsylvania Press Anniversary Collection

    (Publisher)

  I propose, in the second place, to refer to some of these decisions in order to discover the actual meaning of the language used as deter-mined from day to day by our constitutional court of last resort. I call this actual meaning the second Fourteenth Amendment. Finally, I shall attempt to evaluate the political 79 THE COUNTRY LAWYER significance of the discrepancies which appear between the Constitution by electoral intention on the one hand and by judicial interpretation on the other. 1 The purpose of the Fourteenth Amendment was plainly remedial. The Civil War had come to an end. Slavery had been abolished by the Thirteenth Amendment. Neverthe-less, Negroes remained subject to various disabilities in all the states south of the Mason and Dixon line and in many of those north of it. The Civil Rights Bill, directed by its express terms against discrimination among the inhabitants of any State or Territory on account of race or previous condition of slavery, had been passed over President Johnson's veto, but was generally believed to be unconstitutional. On these accounts the supporters of the Fourteenth Amendment were content in most instances to rest their case on a mere recital of the familiar sequence of the old law, the mischief and the remedy. On May 8, 1866, Thaddeus Stevens, speaking in the House of Representatives, said: The first section [of the amendment] prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the equal protection of the laws. I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Property Rights

  From Magna Carta to the Fourteenth Amendment

  • Bernard Siegan(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  The problem with this earlier version of the proposed amendment was that instead of prohibiting state action that infringed on liberties, the amendment placed the obligation entirely on Congress to make laws that would keep the states in check. The latter granted to Congress what was considered either excessive or illdefined authority over the states and it enabled future congresses to change policy. The final version of the Fourteenth Amendment was drafted to meet these concerns. Consistent with the form of other constitutional protections, it prohibited certain actions by all of the states, and its purposes could be negated not by the majority will of another congress but only by another amendment.

  From Bingham’s perspective, an amendment giving Congress civil rights authority would have made the Civil Rights Act unnecessary. He rejected the proposed act, in part, because it removed some inherent state powers and centralized them in the federal government.46 In contrast, his proposed amendment would greatly advance freedom and yet maintain the federal/state balance: “The care of the property, the liberty, and the life of the citizen . . . is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country.”47 Under the amendment, state authorities would have to answer nationally only if “they enact laws refusing equal protection to life, liberty or property.”48

  Bingham explained that the equal protection provision of the amendment also applied the due process guarantee to the states. He equated these two concepts with one another; there could be no liberty without equality and vice versa. On initial consideration, this position might appear untenable, for many commentators believe that irreconcilable tension exists between liberty and equality. Governments impose myriad laws and regulations that achieve the latter at the expense of the former. This version of equality is statist, though, and is brought about by the adoption of laws that make people alike in their condition. However, the libertarian version, which was advanced by Bingham and espoused by John Locke, Edward Coke, and William Blackstone (among others), is based on the protection of individual rights. For Bingham and these commentators, equality before the law meant that all laws should apply equally and that no person or group should be favored or disfavored. No one is entitled to more or fewer rights than anyone else. Locke offered this perspective on equality:

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  The Second Founding

  An Introduction to the Fourteenth Amendment

  • Ilan Wurman(Author)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  As it were, the framers did provide a textual basis for this requirement by providing, in the passive voice, that “no person” shall be deprived of life, liberty, or property without due process of law. The proposition that a denial of the protection of the laws would also amount to a violation of due process was accepted by many in the antebellum period, including Thomas Jefferson, 45 abolitionist thinkers, 46 and even the Supreme Court as late as 1866. 47 Due process of law, in short, required that there be protec- tion of the laws. 48 So much for equal protection. What about equality in the privileges and immunities of citizenship? Is the federal government bound to define and protect such rights equally? This is a harder question to answer. Some scholars have tried to show that a general equality requirement did exist against the federal government as a result of the citizenship clause (the first sentence) of the Fourteenth Amendment. 49 The citizenship clause, which has no “state action” requirement, binds the federal government just as much as it binds the states. If the notion of “citizenship” implied equality, then that notion bound the federal government. We have seen that citizenship, at least as it was understood pursuant to the comity clause, did require equality of citizens in like circumstances. As Justice Story wrote, the comity clause “communicate[s] all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances.” 50 Chancellor Kent similarly wrote of the clause that if citizens “remove from one state to another, they are entitled to the privileges that 136 The Past and Future of the Fourteenth Amendment persons of the same description are entitled to in the state to which the removal is made, and to none other.” 51 This does not quite answer the question, however, which is whether the government is allowed to give different privileges based on different circumstances in the first place.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  The Reconstruction Era

  Primary Documents on Events from 1865 to 1877

  • Donna L. Dickerson(Author)
  • 2003(Publication Date)
  • Greenwood

    (Publisher)

  Lee and former Confederate vice president Alexander H. Stephens. The committee concluded that the former Confederate states were not entitled to representation in the Congress until "adequate security for future peace and safety" was guaranteed. The only way to guarantee such safety was to protect the civil and political rights of all the citizens. 1 Although Republicans had gone to great lengths to embed these guarantees in the Civil Rights Act of 1866, it was important to give them o 123 124 The Reconstruction Era constitutional status since laws are subject to repeal or can be declared un- constitutional by courts. So, Congress placed the principles and policies of equal rights beyond the reach of the president and the Southern states by embedding them in a constitutional amendment. The Fourteenth Amendment, composed of four separate resolutions, often was referred to in the press as the "amendments" because it had so many sections. Section One states that all persons born or naturalized in the United States are citizens of the United States and of the state in which they reside. The amendment guarantees private rights against state interference, stating "no State shall make or enforce any law which shall abridge the priv- ileges or immunities of citizens of the Untied States; nor shall any State de- prive 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." Before the war, a slave was counted as three-fifths of a person for pur- poses of representation in the House of Representatives. Under Section Two of the new amendment, freedmen would be counted as full persons but only if they were allowed to vote. Should Southern states choose not to enfranchise black men, their representation in the House would decrease significantly.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Women's Rights in the USA

  Policy Debates and Gender Roles

  • Dorothy E. McBride, Janine A. Parry(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  After the Civil War, the Reconstruction Congress pushed through three amendments to the Constitution. The Thirteenth Amendment abolished slavery. The Fifteenth Amendment prohibited states from denying citizens the vote “on account of race, color, or previous condition of servitude.” The Fourteenth Amendment set forth details for regulating the states’ powers in the wake of the Civil War and the freeing of the slaves. Section 1 has had the effect of extending to the states the limits on the national government's power to interfere with citizens’ rights contained in the Bill of Rights. Three clauses in the Fourteenth Amendment are important in relation to women's rights (emphases added):

  1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
  2. Nor shall any state deprive any person of life, liberty, or property without due process of law.
  3. Nor deny to any person within its jurisdiction the equal protection of the laws.

  With respect to equality, the key phrase for interpretation is in the third clause, the Equal Protection Clause. While it is not possible to know fully the motives or intent of the framers of this language, they were related closely to the antislavery movement and influenced more or less by the same theories of natural rights embodied in the clause “all men are created equal” in the Declaration of Independence. At the time the amendment was being considered, feminists were most concerned about Section 2, which determined the number of representatives a state had in Congress based on the number of male citizens allowed to vote. For the first time, sex-specific language was in the basic law of the land, denying women of all races their place in the political community. The framers—despite the ironic reality that women were four times more likely than men to serve as petition canvassers in the antislavery movement (Carpenter and Moore 2014 )—told Susan B. Anthony and Elizabeth Cady Stanton that “this is the Negro's hour,” dashing hopes that the emancipation of slaves would lead to the emancipation of women.2

  These early leaders of the Woman Movement consequently saw little in the Fourteenth Amendment to help their cause. The political and ideological context in which the amendment was ratified limited its effect on women's rights, despite the gender-neutral language of the Equal Protection Clause itself. Still, two individuals brought cases to test the amendment's application to specific rights.3 Virginia Minor claimed in 1875 that the right to vote for women was embodied in the Privileges and Immunities Clause (see Chapter 3 ). The Court disagreed. Counsel for Myra Colby Bradwell argued in 1873 that the Privileges and Immunities Clause gave her the right to practice law in Illinois, which forbade married women from entering that profession (Bradwell v. Illinois1873

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Constitutional Law for the Criminal Justice Professional

  • Carl J. Franklin(Author)
  • 1999(Publication Date)
  • Routledge

    (Publisher)

  Section Eight Fourteenth Amendment — Due Process and Equal Protection Amendment 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. 280 Constitutional Law for the Criminal Justice Professional Section 3.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  The Fourteenth Amendment and the Privileges and Immunities of American Citizenship

  • Kurt T. Lash(Author)
  • 2014(Publication Date)
  • Cambridge University Press

    (Publisher)

  98 On February 3, the Com- mittee considered the following draft: Congress shall have power to make laws which shall be necessary and proper to secure to all persons in every State full protection in the enjoyment of life, liberty and property; and to citizens of the United States in every State the same immunities, and equal political rights and privileges. 99 Bingham moved successfully to substitute a different version that relied on the specific language of the Constitution (the parentheticals are in the original): The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5th Amendment). 100 The committee adopted Bingham’s draft on February 10 and sent the same back to Congress for consideration and debate. 101 In his speech before the House on February 26, Bingham explained what he believed was the meaning and purpose of this initial draft of the Fourteenth Amendment. His speech presents a relatively concise statement of Bingham’s constitutional theory at the time, so it is worth an extended excerpt. Of particular importance is Bingham’s insistence that the proposed amendment tracked the exact words and ideas of the original Constitution: I ask, however, the attention of the House to the fact that the amendment proposed stands in the very words of the Constitution of the United States as it came to us from the hands of its illustrious framers. Every word of the proposed amendment is to-day in the Constitution of our country, save the words conferring the express grant of power upon the Congress of the United States.

  Sign up to read

  Learn more about book