The Fifteenth Amendment (Amendment XV) to the United States Constitution prohibits the federal and state governments from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude". It was ratified on February 3, 1870, as the third and last of the Reconstruction Amendments.
In the final years of the American Civil War and the Reconstruction Era
that followed, Congress repeatedly debated the rights of the millions
of former black slaves. By 1869, amendments had been passed to abolish
slavery and provide citizenship and equal protection under the laws, but
the election of Ulysses S. Grant
to the presidency in 1868 convinced a majority of Republicans that
protecting the franchise of black male voters was important for the
party's future. On February 26, 1869, after rejecting more sweeping
versions of a suffrage amendment, Congress proposed a compromise
amendment banning franchise restrictions on the basis of race, color, or
previous servitude. After surviving a difficult ratification fight, the
amendment was certified as duly ratified and part of the Constitution
on March 30, 1870.
United States Supreme Court
decisions in the late nineteenth century interpreted the amendment
narrowly. From 1890 to 1910, southern states adopted new state
constitutions and enacted laws that raised barriers to voter
registration. This resulted in most black voters and many poor white
ones being disenfranchised by poll taxes and discriminatory literacy tests, among other barriers to voting, from which white male voters were exempted by grandfather clauses. A system of white primaries and violent intimidation by white groups also suppressed black participation.
In the twentieth century, the Court began to interpret the amendment more broadly, striking down grandfather clauses in Guinn v. United States
(1915) and dismantling the white primary system in the "Texas primary
cases" (1927–1953). Along with later measures such as the Twenty-fourth Amendment, which forbade poll taxes in federal elections, and Harper v. Virginia State Board of Elections
(1966), which forbade poll taxes in state elections, these decisions
significantly increased black participation in the American political
system. To enforce the amendment, Congress enacted the Voting Rights Act of 1965,
which provided federal oversight of elections in discriminatory
jurisdictions, banned literacy tests and similar discriminatory devices,
and created legal remedies for people affected by voting
discrimination.
The amendment created a split within the women's suffrage movement over the amendment not prohibiting denying the women the right to vote on account of sex.
Section 1. The right of
citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of race, color, or
previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Background
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 be
now counted rather than the three-fifths mandated by the previous Three-Fifths Compromise, the Southern states would dramatically increase their power in the population-based House of Representatives.Republicans hoped to offset this advantage by attracting and protecting votes of the newly enfranchised black population.
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 Southern 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. 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.
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. Despite this victory, even some Republicans who had supported the goals
of the Civil Rights Act began to doubt that Congress possessed the
constitutional power to turn those goals into laws.
The experience encouraged both radical and moderate Republicans to seek
Constitutional guarantees for black rights, rather than relying on
temporary political majorities.
On June 18, 1866, Congress adopted the Fourteenth Amendment,
which guaranteed citizenship and equal protection under the laws
regardless of race, and sent it to the states for ratification. After a
bitter struggle that included attempted rescissions of ratification by two states, the Fourteenth Amendment was adopted on July 28, 1868.
Section 2 of the Fourteenth Amendment punished, by reduced
representation in the House of Representatives, any state that
disenfranchised any male citizens over 21 years of age. By failing to
adopt a harsher penalty, this signaled to the states that they still
possessed the right to deny ballot access based on race.
Northern states were generally as averse to granting voting rights to
blacks as Southern states. In the year of its ratification, only eight
Northern states allowed Blacks to vote. In the South, Blacks were able to vote in many areas, but only through the intervention of the occupying Union Army. Congress had granted suffrage to Blacks in the territories by passing the Territorial Suffrage Act in 1867.
Proposal and ratification
Proposal
An 1867 drawing depicting African Americans casting ballots
Anticipating an increase in Democratic membership in the following Congress, Republicans used the lame-duck session of the 40th United States Congress to pass an amendment protecting black suffrage. Representative John Bingham,
the primary author of the Fourteenth Amendment, pushed for a
wide-ranging ban on suffrage limitations, but a broader proposal banning
voter restriction on the basis of "race, color, nativity, property,
education, or religious beliefs" was rejected. A proposal to specifically ban literacy tests was also rejected. Some Representatives from the North, where nativism
was a major force, wished to preserve restrictions denying the
franchise to foreign-born citizens, as did Representatives from the
West, where ethnic Chinese were banned from voting.
Both Southern and Northern Republicans also wanted to continue to deny
the vote temporarily to Southerners disfranchised for support of the Confederacy, and they were concerned that a sweeping endorsement of suffrage would enfranchise this group.
A House and Senate conference committee
proposed the amendment's final text, which banned voter restriction
only on the basis of "race, color, or previous condition of servitude". To attract the broadest possible base of support, the amendment made no mention of poll taxes or other measures to block voting, and did not guarantee the right of blacks to hold office. This compromise proposal was approved by the House on February 25, 1869, and the Senate the following day.
The vote in the House was 144 to 44, with 35 not voting. The
House vote was almost entirely along party lines, with no Democrats
supporting the bill and only 3 Republicans voting against it, some because they thought the amendment did not go far enough in its protections.
The House of Representatives passed the amendment with 143 Republican
and 1 Conservative Republican votes of "Yea"; 39 Democrat, 3 Republican,
1 Independent Republican and 1 Conservative votes of "Nay"; 26
Republican, 8 Democrat and 1 Independent Republican not voting. The final vote in the Senate was 39 to 13, with 14 not voting.
The Senate passed the amendment with a vote of 39 Republican votes of
"Yea", 8 Democrat and 5 Republican votes of "Nay"; 13 Republican and 1
Democrat not voting. Some Radical Republicans, such as Massachusetts Senator Charles Sumner, abstained from voting because the amendment did not prohibit literacy tests and poll taxes.
Following congressional approval the proposed amendment was then sent
by Secretary of State William Henry Seward to the states for
ratification or rejection.
Ratification
An 1869 Thomas Nast
cartoon supporting the Fifteenth Amendment. In the cartoon, Americans
of different ancestries and ethnic backgrounds sit together at a dinner
table with Columbia to enjoy a Thanksgiving meal as equal members of the American citizenry, while Uncle Sam prepares and sets the table.
Though many of the original proposals for the amendment had been
moderated by negotiations in committee, the final draft nonetheless
faced significant hurdles in being ratified by three-fourths of the
states. Historian William Gillette wrote of the process, "it was hard
going and the outcome was uncertain until the very end."
One source of opposition to the proposed amendment was the women's suffrage movement, which before and during the Civil War had made common cause with the abolitionist
movement. However, with the passage of the Fourteenth Amendment, which
had explicitly protected only male citizens in its second section,
activists found the civil rights of women divorced from those of blacks.
Matters came to a head with the proposal of the Fifteenth Amendment,
which barred race discrimination but not sex discrimination in voter
laws. After an acrimonious debate, the American Equal Rights Association, the nation's leading suffragist group, split into two rival organizations: the National Woman Suffrage Association of Susan B. Anthony and Elizabeth Cady Stanton, who opposed the amendment, and the American Woman Suffrage Association of Lucy Stone and Henry Browne Blackwell, who supported it. The two groups remained divided until the 1890s.
1870 print celebrating the passage of the Fifteenth Amendment in February 1870, and the post Civil War political empowerment of African Americans.
Nevada was the first state to ratify the amendment, on March 1, 1869. The New England states and most Midwest states also ratified the amendment soon after its proposal. Southern states still controlled by Radical reconstruction governments, such as North Carolina, also swiftly ratified. Newly elected President Ulysses S. Grant
strongly endorsed the amendment, calling it "a measure of grander
importance than any other one act of the kind from the foundation of our
free government to the present day." He privately asked Nebraska's
governor to call a special legislative session to speed the process,
securing the state's ratification.
In April and December 1869, Congress passed Reconstruction bills
mandating that Virginia, Mississippi, Texas and Georgia ratify the
amendment as a precondition to regaining congressional representation;
all four states did so.
The struggle for ratification was particularly close in Indiana and
Ohio, which voted to ratify in May 1869 and January 1870, respectively.
New York, which had ratified on April 14, 1869, tried to revoke its
ratification on January 5, 1870. However, in February 1870, Georgia,
Iowa, Nebraska, and Texas ratified the amendment, bringing the total
ratifying states to twenty-nine—one more than the required twenty-eight
ratifications from the thirty-seven states, and forestalling any court
challenge to New York's resolution to withdraw its consent.
The first twenty-eight states to ratify the Fifteenth Amendment were:
The remaining seven states all subsequently ratified the amendment:
31. New Jersey: February 15, 1871 (After rejection: March 17/18, 1870)
32. Delaware: February 12, 1901 (After rejection: March 17/18, 1869)
33. Oregon: February 24, 1959 (After rejection: October 26, 1870)
34. California: April 3, 1962 (After rejection: January 28, 1870)
35. Maryland: May 7, 1973 (After rejection: February 4/26, 1870)
36. Kentucky: March 18, 1976 (After rejection: March 11/12, 1869)
37. Tennessee: April 8, 1997 (After rejection: November 16, 1869)
The amendment's adoption was met with widespread celebrations in
black communities and abolitionist societies; many of the latter
disbanded, feeling that black rights had been secured and their work was
complete. President Grant said of the amendment that it "completes the
greatest civil change and constitutes the most important event that has
occurred since the nation came to life". Many Republicans felt that with the amendment's passage, black
Americans no longer needed federal protection; congressman and future
president James A. Garfield
stated that the amendment's passage "confers upon the African race the
care of its own destiny. It places their fortunes in their own hands." Congressman John R. Lynch later wrote that ratification of those two amendments made Reconstruction a success.
Application
Reconstruction
The first known black voter after the amendment's adoption was Thomas Mundy Peterson, who cast his ballot on March 31, 1870, in a Perth Amboy, New Jersey referendum election adopting a revised city charter.
In United States v. Reese (1876), the first U.S. Supreme Court
decision interpreting the Fifteenth Amendment, the Court interpreted
the amendment narrowly, upholding ostensibly race-neutral limitations on
suffrage including poll taxes, literacy tests, and a grandfather clause
that exempted citizens from other voting requirements if their
grandfathers had been registered voters, a condition only white men
could generally meet.
The Court also stated that the amendment does not confer the right of
suffrage, but it invests citizens of the United States with the right of
exemption from discrimination in the exercise of the elective franchise
on account of their race, color, or previous condition of servitude,
and empowers Congress to enforce that right by "appropriate
legislation". The Court wrote:
The Fifteenth Amendment does not
confer the right of suffrage upon any one. It prevents the States, or
the United States, however, from giving preference, in this particular,
to one citizen of the United States over another on account of race,
color, or previous condition of servitude. Before its adoption, this
could be done. It was as much within the power of a State to exclude
citizens of the United States from voting on account of race, &c.,
as it was on account of age, property, or education. Now it is not. If
citizens of one race having certain qualifications are permitted by law
to vote, those of another having the same qualifications must be.
Previous to this amendment, there was no constitutional guaranty against
this discrimination: now there is. It follows that the amendment has
invested the citizens of the United States with a new constitutional
right which is within the protecting power of Congress. That right is
exemption from discrimination in the exercise of the elective franchise
on account of race, color, or previous condition of servitude. This,
under the express provisions of the second section of the amendment,
Congress may enforce by "appropriate legislation."
White supremacists, such as the Ku Klux Klan (KKK), used paramilitary violence to prevent blacks from voting. A number of blacks were killed at the Colfax massacre of 1873 while attempting to defend their right to vote. The Enforcement Acts were passed by Congress in 1870–1871 to authorize federal prosecution of the KKK and others who violated the amendment.
However, as Reconstruction neared its end and federal troops withdrew,
prosecutions under the Enforcement Acts dropped significantly. In United States v. Cruikshank
(1876), the Supreme Court ruled that the federal government did not
have the authority to prosecute the perpetrators of the Colfax massacre
because they were not state actors.
Congress further weakened the acts in 1894 by removing a provision against conspiracy. In 1877, Republican Rutherford B. Hayes was elected president after a highly contested election, receiving support from three Southern states in exchange for a pledge
to allow white Democratic governments to rule without federal
interference. As president, he refused to enforce federal civil rights
protections, allowing states to begin to implement racially discriminatory Jim Crow laws. A Federal Elections Bill was successfully filibustered in the Senate.
Post-Reconstruction
From
1890 to 1910, poll taxes and literacy tests were instituted across the
South, effectively disenfranchising the great majority of black men. White male-only primary elections
also served to reduce the influence of black men in the political
system. Along with increasing legal obstacles, blacks were excluded from
the political system by threats of violent reprisals by whites in the
form of lynch mobs and terrorist attacks by the Ku Klux Klan. Some Democrats even advocated a repeal of the amendment, such as William Bourke Cockran of New York.
In the 20th century, the Court began to read the Fifteenth Amendment more broadly. In Guinn v. United States (1915),
a unanimous Court struck down an Oklahoma grandfather clause that
effectively exempted white voters from a literacy test, finding it to be
discriminatory. The Court ruled in the related case Myers v. Anderson (1915), that the officials who enforced such a clause were liable for civil damages.
The Court addressed the white primary system in a series of decisions later known as the "Texas primary cases". In Nixon v. Herndon (1927),
Nixon sued for damages under federal civil rights laws after being
denied a ballot in a Democratic party primary election on the basis of
race. The Court found in his favor on the basis of the Fourteenth
Amendment, which guarantees equal protection under the law, while not
discussing his Fifteenth Amendment claim.
After Texas amended its statute to allow the political party's state
executive committee to set voting qualifications, Nixon sued again; in Nixon v. Condon (1932), the Court again found in his favor on the basis of the Fourteenth Amendment.
Following Nixon, the Democratic Party's state convention
instituted a rule that only whites could vote in its primary elections;
the Court unanimously upheld this rule as constitutional in Grovey v. Townsend (1935), distinguishing the discrimination by a private organization from that of the state in the previous primary cases. However, in United States v. Classic (1941), the Court ruled that primary elections were an essential part of the electoral process, undermining the reasoning in Grovey. Based on Classic, the Court in Smith v. Allwright (1944), overruled Grovey, ruling that denying non-white voters a ballot in primary elections was a violation of the Fifteenth Amendment. In the last of the Texas primary cases, Terry v. Adams (1953),
the Court ruled that black plaintiffs were entitled to damages from a
group that organized whites-only pre-primary elections with the
assistance of Democratic party officials.
The Court also used the amendment to strike down a gerrymander in Gomillion v. Lightfoot (1960). The decision found that the redrawing of city limits by Tuskegee, Alabama officials to exclude the mostly black area around the Tuskegee Institute discriminated on the basis of race. The Court later relied on this decision in Rice v. Cayetano (2000), which struck down ancestry-based voting in elections for the Office of Hawaiian Affairs;
the ruling held that the elections violated the Fifteenth Amendment by
using "ancestry as a racial definition and for a racial purpose".
After judicial enforcement of the Fifteenth Amendment ended
grandfather clauses, white primaries, and other discriminatory tactics,
Southern black voter registration gradually increased, rising from five
percent in 1940 to twenty-eight percent in 1960. Although the Fifteenth Amendment was never interpreted to prohibit poll taxes, in 1962 the Twenty-fourth Amendment was adopted banning poll taxes in federal elections, and in 1966 the Supreme Court ruled in Harper v. Virginia State Board of Elections (1966) that state poll taxes violate the Fourteenth Amendment's Equal Protection Clause.
Congress used its authority pursuant to Section 2 of the Fifteenth Amendment to pass the Voting Rights Act of 1965,
achieving further racial equality in voting. Sections 4 and 5 of the
Voting Rights Act required states and local governments with histories
of racial discrimination in voting to submit all changes to their voting
laws or practices to the federal government for approval before they
could take effect, a process called "preclearance." By 1976, sixty-three
percent of Southern blacks were registered to vote, a figure only five
percent less than that for Southern whites.
The Supreme Court upheld the constitutionality of Sections 4 and 5 in South Carolina v. Katzenbach (1966). However, in Shelby County v. Holder
(2013), the Supreme Court ruled that Section 4(b) of the Voting Rights
Act, which established the coverage formula that determined which
jurisdictions were subject to preclearance, was no longer constitutional
and exceeded Congress's enforcement authority under Section 2 of the
Fifteenth Amendment. The Court declared that the Fifteenth Amendment
"commands that the right to vote shall not be denied or abridged on
account of race or color, and it gives Congress the power to enforce
that command. The Amendment is not designed to punish for the past; its
purpose is to ensure a better future."
According to the Court, "Regardless of how to look at the record no one
can fairly say that it shows anything approaching the 'pervasive,'
'flagrant,' 'widespread,' and 'rampant' discrimination that faced
Congress in 1965, and that clearly distinguished the covered
jurisdictions from the rest of the nation." In dissent, Justice Ruth Bader Ginsburg
wrote, "Throwing out preclearance when it has worked and is continuing
to work to stop discriminatory changes is like throwing away your
umbrella in a rainstorm because you are not getting wet."
While the preclearance provision itself was not struck down, it will
continue to be inoperable unless Congress passes a new coverage formula.
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 the states of the defeated Confederacy,
which were forced to ratify it in order to regain representation in
Congress. The amendment, particularly its first section, is one of the
most litigated parts of the Constitution, forming the basis for landmark
decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage. The amendment limits the actions of all state and local officials, including those acting on behalf of such an official.
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 Rightsapplicable 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, including all non-citizens, within its jurisdiction.
This clause has been the basis for many decisions rejecting irrational
or unnecessary discrimination against people belonging to various
groups.
The second, third, and fourth sections of the amendment are
seldom litigated. However, the second section's reference to "rebellion
and other crime" has been invoked as a constitutional ground for felony disenfranchisement. The fourth section was held, in Perry v. United States
(1935), to prohibit a current Congress from abrogating a contract of
debt incurred by a prior Congress. The fifth section gives Congress the
power to enforce the amendment's provisions by "appropriate
legislation"; however, under City of Boerne v. Flores (1997), this power may not be used to contradict a Supreme Court decision interpreting the 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.
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.
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. 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.
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 preventing
them from suing or testifying in court.
Although strongly urged by moderates in Congress to sign the bill, PresidentAndrew 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. Three weeks later, Johnson's veto was overridden and the measure became law.
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.
The experience also encouraged both radical and moderate Republicans to
seek Constitutional guarantees for black rights, rather than relying on
temporary political majorities.
Over 70 proposals for an amendment were drafted. 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. 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. 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.
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. 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.
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. 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." Abolitionist Wendell Phillips called it a "fatal and total surrender". 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. Oregon rescinded ratification post-certification and was included in the official count
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.
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".
The first twenty-eight states to ratify the Fourteenth Amendment were:
North Carolina – July 4, 1868 (after rejection – December 14, 1866)
Louisiana – July 9, 1868 (after rejection – February 6, 1867)
South Carolina – July 9, 1868 (after rejection – December 20, 1866)
If rescission by Ohio and New Jersey were invalid, South Carolina
would have been the 28th State. Rescission by Oregon did not occur until
later. These rescissions caused significant controversy. However,
ratification by other states continued during the course of the debate:
On July 20, 1868, Secretary of StateWilliam H. Seward
certified that if withdrawals of ratification by New Jersey and Ohio
were ineffective, then the amendment had become part of the Constitution
on July 9, 1868, with ratification by South Carolina.
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.
Both New Jersey and Ohio were named in the congressional resolution as
having ratified the amendment, although Alabama was also named, making
29 states total.
On the same day, one more State ratified:
Georgia – July 21, 1868 (after rejection – November 9, 1866)
On July 27, Secretary Seward received the formal ratification from Georgia.
The following day, July 28, Secretary Seward issued his official
proclamation certifying the ratification of the 14th Amendment.
Secretary Seward stated that his proclamation was "in conformance" to
the resolution by Congress, but his official list of States included
both Alabama and Georgia, as well as Ohio and New Jersey.
The inclusion of Ohio and New Jersey has led some to question the
validity of rescission of a ratification. The inclusion of Alabama and
Georgia has called that conclusion into question. While there have been
Supreme Court cases dealing with ratification issues, this particular
question has never been adjudicated.
The Fourteenth Amendment was subsequently ratified:
Virginia – October 8, 1869 (after rejection – January 9, 1867)
Kentucky – March 30, 1976 (after rejection – January 8, 1867)
Since Ohio and New Jersey re-ratified the Fourteenth Amendment in
2003, all U.S. states that existed during Reconstruction have ratified
the amendment.
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) 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."
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.
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. 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.
This first section of the amendment has been the most frequently litigated part of the amendment, and this amendment in turn has been the most frequently litigated part of the Constitution.
Citizenship Clause
U.S. Senator from Michigan Jacob M. Howard, 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. Some members of Congress voted for the Fourteenth Amendment in order to eliminate doubts about the constitutionality of the Civil Rights Act of 1866, or to ensure that no subsequent Congress could later repeal or alter the main provisions of that Act.
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. 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.
Historian Eric Foner, who has explored the question of U.S. birthright citizenship to other countries, argues that:
Many
things claimed as uniquely American—a devotion to individual freedom,
for example, or social opportunity—exist in other countries. But
birthright citizenship does make the United States (along with Canada)
unique in the developed world. [...] Birthright citizenship is one
expression of the commitment to equality and the expansion of national
consciousness that marked Reconstruction.
[...] Birthright citizenship is one legacy of the titanic struggle of
the Reconstruction era to create a genuine democracy grounded in the
principle of equality.
Native Americans
During the original congressional debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—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." According to historian Glenn W. LaFantasie of Western Kentucky University, "A good number of his fellow senators supported his view of the citizenship clause." Others also agreed that the children of ambassadors and foreign ministers were to be excluded.
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, but Senate Judiciary Committee ChairmanLyman 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. In Elk v. Wilkins (1884),
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. The issue was resolved with the passage of the Indian Citizenship Act of 1924, which granted full U.S. citizenship to indigenous peoples.
Children born to citizens of other countries
The Fourteenth Amendment provides that children born in the United
States and subject to its jurisdiction become American citizens at
birth. At the time of the amendment's passage, three Senators,
including Trumbull, the author of the Civil Rights Act, as well as PresidentAndrew Johnson,
asserted that both the Civil Rights Act and the Fourteenth Amendment
would confer citizenship at birth on children born in the United States
to citizens of foreign countries; however, Senator Edgar Cowan of
Pennsylvania had a definitively contrary opinion.
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. 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.
The clause's meaning with regard to a child of legal immigrants was tested in United States v. Wong Kim Ark (1898).
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.
According to the Foreign Affairs Manual, which is published by the Department of Defense, "Despite widespread popular belief,
U.S. military installations abroad and U.S. diplomatic or consular
facilities abroad are not part of the United States within the meaning
of the [Fourteenth] Amendment."
Fraud in the naturalization
process. Technically, this is not a 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.
Affiliation with "anti-American" organizations (e.g., the Communist
party, terrorist organizations, etc.) within 5 years of naturalization.
The State department views such affiliations as sufficient evidence
that an applicant must have lied or concealed evidence in the
naturalization process.
Other-than-honorable discharge from the U.S. armed forces before 5
years of honorable service, if honorable service was the basis for the
naturalization.
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.
For much of the country's history, voluntary acquisition or exercise
of a foreign citizenship was considered sufficient cause for revocation
of national citizenship. 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), as well as Vance v. Terrazas (1980),
holding that the Citizenship Clause of the Fourteenth Amendment barred
the Congress from revoking citizenship. However, Congress can revoke
citizenship that it had previously granted to a person not born in the
United States.
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, which protects the privileges and immunities of state citizenship from interference by other states. In the Slaughter-House Cases (1873),
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.
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."
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. This decision has not been overruled and has been specifically reaffirmed several times. Largely as a result of the narrowness of the Slaughter-House opinion, this clause subsequently lay dormant for well over a century.
In Saenz v. Roe (1999), 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.
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.
Due process of law in the
[Fourteenth Amendment] refers to that law of the land in each state
which derives its authority from the inherent and reserved powers of the
state, exerted within the limits of those fundamental principles of
liberty and justice which lie at the base of all our civil and political
institutions, and the greatest security for which resides in the right
of the people to make their own laws, and alter them at their pleasure.
The Due Process Clause of the Fourteenth Amendment applies only
against 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.
Procedural due process is the guarantee of a fair legal process when
the government tries to interfere with 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. 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.
Substantive due process
Beginning with Allgeyer v. Louisiana (1897), 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." Thus, the Court struck down a law decreeing maximum hours for workers in a bakery in Lochner v. New York (1905) and struck down a minimum wage law in Adkins v. Children's Hospital (1923). In Meyer v. Nebraska (1923), 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.
However, the Court did uphold some economic regulation, such as state Prohibition laws (Mugler v. Kansas, 1887), laws declaring maximum hours for mine workers (Holden v. Hardy, 1898), laws declaring maximum hours for female workers (Muller v. Oregon, 1908), and President Woodrow Wilson's intervention in a railroad strike (Wilson v. New, 1917), as well as federal laws regulating narcotics (United States v. Doremus, 1919). The Court repudiated, but did not explicitly overrule, the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937).
In Poe v. Ullman (1961), dissenting judge John Marshall Harlan II adopted a broad view of the "liberty" protected by the Fourteenth Amendment Due Process clause:
[T]he full scope of the liberty
guaranteed by the Due Process Clause cannot be found in or limited by
the precise terms of the specific guarantees elsewhere provided in the
Constitution. This 'liberty' is not a series of isolated points pricked
out in terms of the taking of property; the freedom of speech, press,
and religion; the right to keep and bear arms; the freedom from
unreasonable searches and seizures; and so on. It is a rational
continuum which, broadly speaking, includes a freedom from all
substantial arbitrary impositions and purposeless restraints, . . . and
which also recognizes, what a reasonable and sensitive judgment must,
that certain interests require particularly careful scrutiny of the
state needs asserted to justify their abridgment.
This broad view of liberty was adopted by the Supreme Court in Griswold v. Connecticut
(for further information see below). Although the "freedom of contract"
described above 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. 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. 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.
The right to privacy was the basis for Roe v. Wade (1973),
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 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. In Planned Parenthood v. Casey (1992), the Court decided that "the essential holding of Roe v. Wade should be retained and once again reaffirmed."
In Lawrence v. Texas (2003), the Court found that a Texas law against same-sex sexual intercourse violated the right to privacy. In Obergefell v. Hodges (2015), the Court ruled that the fundamental right to marriage included same-sex couples being able to marry.
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. 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), 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.
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), the Supreme Court unanimously ruled that the Bill of Rights restrained only the federal government, not the states.
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."
Whether incorporation was intended by the amendment's framers, such as John Bingham, has been debated by legal historians. 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.
By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states. 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. 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. The Seventh Amendment right to jury trial in civil cases has been held not to be applicable to the states, 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."
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. They also were punished more harshly than whites. In 1880, the Supreme Court stated in Strauder v. West Virginia that the Equal Protection Clause was
The Clause mandates that individuals in similar situations be treated equally by the law.
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."
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:
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. In Plyler v. Doe (1982), where the Court held that aliens illegally present in a state are within its jurisdiction and may thus raise equal protection claims
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." 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:
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]
The relationship between the Fifth and Fourteenth Amendments was addressed by Justice Field in Wong Wing v. United States (1896).
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."
The Supreme Court also decided whether foreign corporations are also within the jurisdiction
of a state, ruling 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.
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.
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.
This dictum, which established that corporations enjoyed personhood under the Equal Protection Clause, was repeatedly reaffirmed by later courts. 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.
Between 1890 and 1910, Fourteenth Amendment cases involving
corporations vastly outnumbered those involving the rights of blacks,
288 to 19.
In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia, 1880) or discriminating against Chinese Americans in the regulation of laundry businesses (Yick Wo v. Hopkins, 1886), as violations of the Equal Protection Clause. However, in Plessy v. Ferguson (1896), 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.
The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908),
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."
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. In Brown
the Court ruled that even if segregated black and white schools were of
equal quality in facilities and teachers, segregation was inherently
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. This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation. 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.
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.
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. 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); Levy v. Louisiana (1968)).
The Supreme Court ruled in Regents of the University of California v. Bakke (1978) 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. In Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), 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. 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. 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. In Schuette v. Coalition to Defend Affirmative Action
(2014), the Court upheld the constitutionality of a state
constitutional prohibition on the state or local use of affirmative
action.
Reed v. Reed (1971),
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. In Craig v. Boren (1976), the Court ruled that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review. Reed and Craig later served as precedents to strike down a number of state laws discriminating by gender.
Since Wesberry v. Sanders (1964) and Reynolds v. Sims (1964),
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". The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993),
the Court prohibited a North Carolina plan aimed at creating
majority-black districts to balance historic underrepresentation in the
state's congressional delegations.
The Equal Protection Clause served as the basis for the decision in Bush v. Gore (2000), 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. In League of United Latin American Citizens v. Perry (2006), the Court ruled that House Majority LeaderTom DeLay's Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause.
State actor doctrine
Individual liberties guaranteed by the United States Constitution, other than the Thirteenth Amendment's ban on slavery, protect not against actions by private persons or entities, but only against actions by government officials. Regarding the Fourteenth Amendment, the Supreme Court ruled in Shelley v. Kraemer (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 (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. In Ex parte Virginia (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."
There are however instances where people are the victims of
civil-rights violations that occur in circumstances involving both
government officials and private actors.
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
(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.
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."
"Only by sifting facts and weighing circumstances can the nonobvious
involvement of the State in private conduct be attributed its true
significance."
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. [...]"
"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."
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,"
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."
Apportionment of representation in House of Representatives
Under Article I, Section 2, Clause 3, the basis of representation of each state in the House of Representatives was determined by adding three-fifths
of each state's slave population to its free population. Because
slavery (except as punishment for crime) had been abolished by the Thirteenth Amendment, the freed slaves would henceforth be given full weight for purposes of apportionment.
This situation was a concern to the Republican leadership of Congress,
who worried that it would increase the political power of the former
slave states, even as they continued to deny freed slaves the right to
vote.
Two solutions were considered:
reduce the Congressional representation of the former slave
states (for example, by basing representation on the number of legal
voters rather than the number of inhabitants)
guarantee freed slaves the right to vote
On January 31, 1866, the House of Representatives voted in favor of a
proposed constitutional amendment that would reduce a state's
representation in the House in proportion to which that state used "race
or color" as a basis to deny the right to vote in that state.
The amendment failed in the Senate, partly because radical Republicans
foresaw that states would be able to use ostensibly race-neutral
criteria, such as educational and property qualifications, to
disenfranchise the freed slaves without negative consequence. So the
amendment was changed to penalize states that denied the vote to male
citizens over twenty-one for any reason other than participation in crime. Later, the Fifteenth Amendment was adopted to guarantee the right to vote could not be denied based on race or color.
The effect of Section 2 was twofold:
Although the three-fifths clause was not formally repealed, it
was effectively removed from the Constitution. In the words of the
Supreme Court in Elk v. Wilkins,
Section 2 "abrogated so much of the corresponding clause of the
original Constitution as counted only three-fifths of such persons
[slaves]".
It was intended to penalize, by means of reduced Congressional
representation, states that withheld the franchise from adult male
citizens for any reason other than participation in crime. This, it was
hoped, would induce the former slave states to recognize the political
rights of the former slaves, without directly forcing them to do
so—something that it was thought the states would not accept.
Enforcement
The first reapportionment after the enactment of the Fourteenth Amendment occurred in 1873, based on the 1870 census.
Congress appears to have attempted to enforce the provisions of Section
2, but was unable to identify enough disenfranchised voters to make a
difference to any state's representation. In the implementing statute, Congress added a provision stating that
should
any state, after the passage of this Act, deny or abridge the right of
any of the male inhabitants of such State, being twenty-one years of
age, and citizens of the United States, to vote at any election named in
the amendments to the Constitution, article fourteen, section two,
except for participation in rebellion or other crime, the number of
Representatives apportioned in this act to such State shall be reduced
in the proportion which the number of such male citizens shall have to
the whole number of male citizens twenty-one years of age in such State.
A nearly identical provision remains in federal law to this day.
Despite this legislation, in subsequent reapportionments, no
change has ever been made to any state's Congressional representation on
the basis of the Amendment. Bonfield, writing in 1960, suggested that "[t]he hot political nature of such proposals has doomed them to failure". Aided by this lack of enforcement, southern states continued to use pretexts to prevent many blacks from voting until the passage of the Voting Rights Act of 1965.
In the Fourth Circuit case of Saunders v Wilkins (1945), Saunders claimed that Virginia should have its Congressional representation reduced because of its use of a poll tax
and other voting restrictions. The plaintiff sued for the right to run
for Congress at large in the state, rather than in one of its designated
Congressional districts. The lawsuit was dismissed as a political question.
Influence
Some have argued that Section 2 was implicitly repealed by the Fifteenth Amendment, but the Supreme Court acknowledged the provisions of Section 2 in some later decisions. In Minor v. Happersett
(1875), the Supreme Court cited Section 2 as supporting its conclusion
that the right to vote was not among the "privileges and immunities of
citizenship" protected by Section 1. In Richardson v. Ramirez (1974), the Court cited Section 2 as justifying the states disenfranchising felons. In Hunter v. Underwood (1985), a case involving disenfranchising black misdemeanants, the Supreme Court concluded that the Tenth Amendment
cannot save legislation prohibited by the subsequently enacted
Fourteenth Amendment. More specifically the Court concluded that laws
passed with a discriminatory purpose are not excepted from the operation
of the Equal Protection Clause by the "other crime" provision of
Section 2. The Court held that Section 2 "was not designed to permit the
purposeful racial discrimination [...] which otherwise violates
[Section] 1 of the Fourteenth Amendment."
Criticism
Abolitionist leaders criticized the amendment's failure to
specifically prohibit the states from denying people the right to vote
on the basis of race.
Section 2 protects the right to vote only of adult males, not
adult females, making it the only provision of the Constitution to
explicitly discriminate on the basis of sex. Section 2 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.
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. In 1975, the citizenship of Confederate general Robert E. Lee was restored by a joint congressional resolution, retroactive to June 13, 1865. In 1978, pursuant to Section 3, the Congress posthumously removed the service ban from Confederate president Jefferson Davis.
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. In Perry v. United States (1935), the Supreme Court ruled that under Section 4 voiding a United States bond "went beyond the congressional power."
The debt-ceiling crises of 2011 and 2013 raised the question of what is the President's authority under Section 4. 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 and Railroad Retirement Act recipients). 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. 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]". 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 any part of the amendment 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."
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. In the Civil Rights Cases (1883),
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.
In Katzenbach v. Morgan (1966), 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. However, in City of Boerne v. Flores (1997),
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.
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.
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