Reconstruction - The 14th Amendment

The 14th Amendment

The 14th Amendment is one of the post-Civil War amendments, also known as the Reconstruction Amendments that was first intended to secure rights for former slaves. It includes the Due Process and Equal Protection Clauses among others. It was proposed on June 13, 1866, and ratified on July 28, 1868. It is perhaps the most significant structural change to the Constitution since the passage of the Bill of Rights. This Amendment provides a broad definition of national citizenship, and overturned the Dred Scott case, which excluded Blacks. It requires the states to provide equal protection under the law to all persons, not just to citizens, within their jurisdictions and was used in the mid-20th century to dismantle legal segregation, as in Brown v. Board of Education. The Due Process Clause has driven important and controversial cases regarding privacy rights, abortion, and other issues. from being American citizens

The first section of the 14th Amendment formally defines citizenship and requires the states to provide civil rights and it says: 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.

This represented Congress's reversal of that portion of the decision that declared that Blacks were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. The Civil Rights Act of 1866 had already granted citizenship to all people born in the United States; the framers of the 14th Amendment enshrined this principle in the Constitution in order to stop the Supreme Court from ruling it unconstitutional for want of congressional authority to pass such a law, or from a future Congress altering people’s ability to be citizens by a bare majority vote.

The provisions in Section 1 have been interpreted to the effect that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee—legally termed jus soli, or "right of the territory"— does not exist in most of Europe or Asia, although it is part of English common law and is common in the Americas.

Congress also passed the 14th Amendment in response to the “Black codes” that Southern states had passed in the wake of the 13th Amendment, which ended slavery in the United States. These “codes” were laws that attempted to return freed slaves to something like their former condition by, among other things, restricting their movement and by preventing them from suing or testifying in court.

Prior to the adoption of this Amendment, the Bill of Rights was generally, though not universally, thought to act only as a restraint on federal governments, not those of the state, and a state's relations with its citizens and those of other states was legally restrained only by that state's constitution and laws and those provisions of the Constitution that limited the powers of the states. The Supreme Court ruled in the civil rights cases that the Amendment was limited to "state action" and thus did not authorize Congress to outlaw racial discrimination on the part of private individuals or organizations. Neither of these decisions has been overturned and, in fact, has been specifically reaffirmed several times.

In the decades following the enactment of the 14th Amendment, the Supreme Court overturned laws barring Blacks from juries, or discriminating against Chinese-Americans in the regulation of laundry businesses, under the Equal Protection Clause. In Plessy v. Ferguson (1896), the Supreme Court held that the states could impose segregation so long as they provided equivalent (equal) facilities. This was the genesis of the "separate but equal" doctrine.

The popular understanding of what was encompassed under "civil rights" was much more restricted during the time of the 14th Amendment's ratification than the present understanding it involved such things as equal treatment in criminal and civil court, in sentencing and in availability of civil services if they apply. On this scheme, political rights were first guaranteed not with the 14th Amendment, but with the 15th Amendment and its giving everyone the right to vote.

On this view, Plessy v. Ferguson (1896) reinterpeted the Equal Protection Clause of its original meaning by restricting its application to this degree. The Supreme Court held to the "separate but equal" doctrine for more than 50 years, despite numerous cases in which the Court itself had found that the segregated facilities provided by the states were almost never equal.

When Brown v. Board of Education of Topeka (1954) reached the U.S. Supreme Court, the decision was met with a campaign of resistance from White Southerners, and for decades the federal courts attempted to enforce Brown's mandate. This resulted in the controversial forced busing decrees handed down by federal courts in many parts of the nation, including major Northern cities such as Detroit and Boston.

In the half century since Brown, the Supreme Court has extended the reach of the Equal Protection Clause to other historically disadvantaged groups, such as women, aliens and illegitimate children, although it has applied a somewhat less stringent test than applied to governmental discrimination on the basis of race.

The Congress proposed the 14th Amendment on June 13, 1866. There being 37 states in the Union at that time, the ratification of 28 would bring this Amendment into operation.

By July 9, 1868, 28 states had ratified the Amendment. The dates of ratification were:

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

However, Ohio passed a resolution that purported to withdraw their ratification on January 15, 1868. The New Jersey legislature also tried to rescind their ratification on February 20, 1868. New Jersey’s governor had vetoed its withdrawal on March 5, and the legislature overrode the veto on March 24. Accordingly, 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. 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:

Alabama (July 13, 1868, the date the ratification was "approved" by the governor) Georgia (July 21, 1868, after having rejected it on November 9, 1866) Thus, on July 28, Seward was able to certify unconditionally that the 14th Amendment was part of the Constitution without having to endorse Congress's assertion that the withdrawals were ineffective.

Ratification Controversy

A number of individuals argue that the ratification of the 14th Amendment violated Article V of the Constitution. For instance, some argue that: First, the 14th Amendment was proposed by a rump Congress that did not include representatives and senators from most ex-Confederate states, and, had those congressmen been present, the Amendment would never have passed. Second, ex-Confederate states were counted for Article V purposes of ratification, but were not counted for Article I purposes of representation in Congress, and finally, the ratifications of the ex-Confederate states were not truly free, but were coerced. For instance, many ex-Confederate states had their re-admittance to the Union conditioned on ratifying the 14th Amendment.

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