Fourteenth Amendment to the U.S. Constitution

Explanation and Analysis of the Document

Section 1

The least controversial part of section 1 is the first sentence, which makes it clear that the former slaves are now citizens of the United States and citizens of the states in which they live. National citizenship is thus defined for the first time. This pointedly overturns the Dred Scott decision of 1857. In that Supreme Court case, Chief Justice Roger Taney denied Dred Scott, a slave, his freedom in part on the ground that a Black might be a citizen of a state but not of the United States. Therefore, Scott had no right to sue in a federal court. In 1866, however, Republicans wanted to prevent former slaves from slipping into a half-free position by explicitly granting them citizenship and at least the promise of federal protection.

The lengthy second sentence contains three distinctive clauses—the meaning of each remains controversial today. Each prohibits certain state actions. First the Fourteenth Amendment guarantees to each citizen privileges and immunities; second, all “persons” are protected from a loss of life, liberty, and property without “due process”; and, third, all are to enjoy the “equal protection of the laws.” At a minimum, congressmen are determined to stop the southern states from enacting Black Codes that recreate a form of near-slavery. Many, including John Bingham, specifically declare that their intention is to constitutionalize the Civil Rights Act of 1866. Former abolitionists have long wanted to extend to African Americans the natural rights that are celebrated in the Declaration of Independence. The vagueness of Section 1 emerges from “the difficulties inherent in any attempt to incorporate a natural law concept into a constitution or public law, especially in a federal system. No legal authorities supplied neat definitions of civil rights; none does today, or can” (Hyman and Wiecek, pp. 406–407).

John Bingham, the principal author of Section 1, takes the terms “privileges and immunities” from Article IV, Section 2, of the U.S. Constitution. He and Senator Jacob Howard argue that the phrase embraces not only the rights that the states created for its citizens but also the Bill of Rights. Many scholars today agree with Bingham that the federal government has the power to enforce the Bill of Rights on the states. This represents a huge expansion of federal power in the 1860s. Some of Bingham's colleagues and later scholars dispute this broad interpretation. They observe that privileges and immunities preceded the Bill of Rights, and the wording simply meant that citizens visiting from another state would enjoy the same rights as the citizens of that state. This might include freedom of movement, property rights, and freedom to make contracts. In essence, the privileges and immunities clause guarantees equality within a state. In the Slaughter-House Cases (1873) the Supreme Court declined to apply the privileges or immunities clause to a Louisiana state law. While most constitutional scholars see this as a poor decision, it would have the real effect of negating whatever meaning the phrase had.

Section 1 guarantees every person “due process of law.” Bingham takes this phrase from the Fifth Amendment, which says that the federal government cannot deny due process. The Fourteenth Amendment dictates that a state may not do so either. The accepted interpretation of due process is simply that the legal rules, proceedings, and customs of a state are available to all persons in that state, again with an emphasis on equality for all. Later in the nineteenth century, the Supreme Court would expand the meaning of due process by examining how laws and regulations affected the life, liberty, or property of persons.

Finally, Section 1 restricts states from denying “to any person  . .  .  the equal protection of the laws.” In the 1860s this is another assertion of equal justice and that states cannot discriminate against groups of individuals by selectively enforcing its laws. As such, it is a subset of rights contained in the privileges and immunities clause. For decades the clause has little impact, to the point where Justice Oliver Wendell Holmes ridiculed it as “the last refuge of a lawyer with no other arguments to make” (Urofsky, p. 442). Again, in time, the meaning of the equal protection clause would change. Because of the confusion over what “privileges or immunities” means, the interpretation of what constitutes “equal laws” results in a vast expansion of rights and government-enforced toleration of minority groups in society.

Section 2

The Thirteenth Amendment ended slavery, but it remained unclear how to apportion members of Congress in the absence of the three-fifths clause (Article I, Section 2, of the Constitution). On one level the Fourteenth Amendment's answer is not surprising; apportionment is based on the total number of people, excluding Native Americans on reservations and tribal areas. According to Section 2, if a state discriminates against any group of adult males by preventing them from voting for federal or state offices, the state would be punished by losing representation. The total number of people would be reduced in proportion to the group of voters that is excluded. In other words, a state cannot benefit with a full representation in Congress if they refuse to let some of their male citizens vote.

This section represents a complicated compromise. Radical Republicans like Thaddeus Stevens and Charles Sumner of Massachusetts demanded Black suffrage. While most northerners wanted protection for African Americans in the South, they generally were not prepared to give them the right to vote in either the South or the North. On the other hand, if Blacks were to be counted as full persons, not three-fifths persons, the southern states would gain approximately ten to twelve representatives. It seemed ironic that because of four years of bloodletting, white southerners would increase their presence in Congress without recognizing the needs and rights of the freedmen. At that time, northern states had small Black populations, so excluding them made no difference in their congressional delegations. Senator James Grimes proposed the solution to forgo Black suffrage but to prevent the increase of the southern delegation in the House of Representatives. If a former slave state wanted to grant its Black male citizens the vote, then the apportionment would change. The Fifteenth Amendment granting suffrage to African Americans would make this section largely moot.

Despite the protests of Elizabeth Cady Stanton, Susan B. Anthony, and other leaders of the women's rights movement, the word male is used for the first time in the Constitution. There would be no penalty for denying women the right to vote.

Section 3

The Fourteenth Amendment prevented some Confederates from serving in federal and state offices. This section was also a product of compromise. Radicals wanted to disfranchise anyone who aided the Confederacy, but this was seen as too draconian, if not impractical. If Blacks were denied political rights, the former Confederate states would be in turmoil for decades. Instead, the Congress came up with a much milder punishment. If one held state or federal office before the Civil War but then renounced loyalty to the United States, that person was to be forbidden to hold federal or state office, with two exceptions. First, anyone who received a presidential pardon before the ratification of the Fourteenth Amendment could hold office. Second, the amendment allowed Congress to pardon, in effect, an individual by a two-thirds vote in each house.

Northerners were upset by two patterns in the months following the end of the war. First, President Johnson was increasingly lenient to wealthy former slaveholders who came to plead for mercy or who sent their spouses to do so. Second, as Johnson's approved state governments came into operation, former Confederate military officers and political leaders were filling positions in state government and being sent to Washington, D.C., to assume seats in Congress. The South's leaders were not showing sufficient sorrow for the death and destruction they had caused.

A substantial amount of the debate recorded in the Congressional Globe surrounds this section and its earlier drafts. Some like Stevens wanted severe penalties for all Confederates. Others wanted disfranchisement until 1870 or 1876. The compromise was to deny political power to as many established southern leaders as possible with the hope that new white leaders would emerge with more conciliatory views. As crucial as Section 1 was for the future, Stevens concluded one of his last speeches about the Fourteenth Amendment by exclaiming, “Give us the third section or give us nothing” (ctd. in James, 1956, p. 130).

Section 4

The Fourteenth Amendment makes it clear that all the debts the United States incurred in prosecuting the war, including soldiers' bounties for enlisting and their pensions, war bonds, greenback currency, and other debts, are legitimate. All Confederate debts, including their paper money and bonds, are worthless. Furthermore, slave owners would not be reimbursed for the loss of their slaves.

This section is largely obvious to all. Some Radical Republicans tried to scare the northern public into thinking that if President Johnson had his way and if the Democratic Party gained control of Congress, northern creditors would not be paid in full but Confederates would be paid in full. This was nonsense, or perhaps this was just a ploy to get votes. This section, however, reassures the Union's backers—both foreign and domestic. British shipbuilders who financed and supplied Confederate blockade-runners, on the other hand, were out of luck. Finally, there was some concern that the Emancipation Proclamation and Thirteenth Amendment conflicted with the Fifth Amendment, since no one, even slaveholders, could have their property taken from them without due process of law. Section 4 resolves the issue by explicitly stating that slaveholders would not be compensated for freed slaves.

Section 5

The single sentence repeats Section 2 of the Thirteenth Amendment almost verbatim. Congress would have the authority to defend the rights outlined in Section 1. When Congress passed the Freedmen's Bureau Bill and the Civil Rights Act, many Republicans felt they had the authority under this provision of the Thirteenth Amendment. President Johnson disagreed, and Republicans feared that the Supreme Court might back the president's interpretation. By reemphasizing Congress's authority in the Fourteenth Amendment, Republicans thought that the problem could be avoided. The Ku Klux Klan Act of 1871 (also called the Civil Rights Act of 1871) and the Civil Rights Act of 1875 are just two manifestations of that belief.