Non Technical Guide to the 14th Amendment

The fourteenth amendment has had a tremendous impact on the direction of the United States and the rights of citizens, possibly more than any other single addition to the US Constitution before or since. In a prior instance of my site, I had an article that I had written for my middle school aged son explaining the fourteenth amendment to the US constitution. Alas, that article was lost when I failed to make a backup of my site. Such is life. This is a replacement written for a slightly older audience. Hopefully it lasts longer.

First off, let’s have the actual text of the amendment:

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.

Whew. That’s one of the longest amendments and it deals with a number of issues. Let’s look at the context of the time when this amendment was passed.

The Reconstruction Amendments

As a result of the civil war, the US constitution was changed three times, with the 13th, 14th, and 15th amendments. This was a curious time in US history because the southern states, having rebelled against the north, were not sending their Senators and Members of the House to Washington DC. Eleven states were not present at all. So what does it mean to ratify a constitutional amendment with two thirds of the states when a big chunk of the states are not going to vote? That was President Andrew Johnson’s objection when the Congress passed the country’s first civil rights act in 1866. That law, known as 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. It was designed to overturn laws in many states that prevented newly freed slaves from having any actual freedom (the “Black Codes”).

The problem was that the federal constitution didn’t give the government in Washington the right to overturn state laws. And that was going to be a big problem if former slaves were going to be treated fairly and equally in the country. So Congress set out to write the fourteenth amendment. In the debates in Congress, there was a great deal of concern that the 14th still wasn’t broad enough because it didn’t ensure that former slaves had the right to vote. (that deficiency was handled just a few years later, in the 15th amendment).

Note that these amendments were voted on by all the states, including the now-defeated Confederate states. In fact, three states (New Jersey, Oregon, and Ohio) ratified the 14th amendment and then rescinded that ratification. This caused a great deal of controversy at the time. The amendment was adopted officially on July 28th, 1868.

An overview of the 14th amendment

The fourteenth amendment has five sections, as you can see from the text above. These sections were set up to address many of the same aspects as the Civil Rights Act of 1866.

Section 1 makes four major statements about the rights of Americans:

a) Citizenship — Any person born in the US is a citizen. Period. This ends any discussion about whether a former slave has the same rights as anyone else. All of the rights of citizenship were to be uniform and consistent regardless of who you were, what was the color of your skin, what language you spoke, what religion you followed, or what country your family arrived from. As long as you were born in the United States, you are a citizen. A later court case reconfirmed that all children, even children of an illegal immigrant, are citizens from the moment they are born here.

b) Privileges or immunities — A fairly narrow concept, the privileges or immunities clause declares that any right provided by the federal constitution cannot be taken away by any of the states. This has not been heavily used in court cases but in those places where it has been used, this clause has had the effect of removing restrictions on constitutionally guaranteed rights.

c) Due Process — The fifth amendment in the bill of rights gives every person the right to due process in federal court. This amendment extends the right of due process to all the courts in the land. Equality without Justice would be an empty promise indeed and most of the laws affecting the daily lives of a citizen are laws of the states, not federal laws. Throughout the civil rights movement of the 1960’s this clause was used extensively to ensure that black Americans had the same access to the courts, and the same right to a fair trial, as all other races. It has been used to decide more than just cases of race discrimination. Advocates have used the due process clause to argue for the rights of women and the rights of the disabled as well. It is important to note that this clause and the next one are not limited to citizens. They apply to all people, regardless of whether they are citizens or not.

d) Equal protection — If a law protects one person, it must protect all people equally. It should go without saying that this simple principle of equality under the law needed to be added to the constitution, but it was very much necessary. That said, this simple act of equality has had profound effects on the country. For example, if a man can marry a woman, why can a man not marry another man? After all, marriage laws provide specific protections and benefits in terms of property and legal rights. Equally if two students apply for entrance to a public university, can the university use the race of the students when deciding who should get in? Oddly enough, the interpretation that corporations had the same right to equal protection as people started in the 1886. Hundreds of federal cases between 1890 and 1910 established the rights of corporations to have equal protection under the law.

Section 2 was an odd political compromise. The 14th amendment did not actually grant black men the right to vote. Instead, it attempted to punish states who disenfranchised black men by reducing their representation in Congress. The fifteenth amendment addressed the issue and Section 2 has largely been ignored ever since.

Section 3 was another political compromise designed to keep former Confederate State representatives from service in Congress or the Federal government. This limitation lasted for thirty years. In 1898, Congress gave a “blanket pardon” to anyone else who had served as a confederate soldier but who wanted to serve in Congress. It’s largely ignored today.

Section 4 recognizes that all debts issued by the US Federal Government must be paid, even in a financial crisis. However, no debts issued for slaves individually or to the Confederate States government would be honored. Note that the public debt clause has raised a question about whether the periodic “debt ceiling” fights that happen in Congress may be unnecessary.

As you can see, the first section of the 14th Amendment is the most impactful today. In fact, in it’s few short sentences, the first section of the 14th has directly defined the powers of the US Federal Government to ensure the rights of every person in the country.

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