Fourteenth Amendment to the U.S. Constitution

Impact

Politically the Fourteenth Amendment struck a positive chord with the northern electorate. Not surprisingly, President Johnson misjudged public sentiment. The congressional elections of 1866 produced decisive Republican majorities in both the Senate and the House. The North trusted Congress with the responsibility of Reconstruction, which President Johnson might resist at his own peril.

The Fourteenth Amendment required the ratification of twenty-eight of the thirty-seven states. Connecticut was the first to ratify (June 25, 1866), followed quickly by New Hampshire (July 6) and Tennessee (July 19). Ratification became complicated when, in early 1868, New Jersey and Ohio tried to rescind their approvals. By July 28, 1868, Secretary of State William Seward certified that twenty-eight states had ratified the Fourteenth Amendment, allowing it to go into operation.

The Fourteenth Amendment, and particularly Section 1, has had a complicated history. Supreme Court justices and constitutional scholars have read the intentions of its authors in different ways. The legal scholar Alexander Bickel concludes that Section 1 fulfilled the moderate Republicans' objective of striking down the Black Codes but speculates that perhaps there was a compromise to create language that “was sufficiently elastic to permit reasonable future advances” (p. 61). Thus, the debate about how far to stretch the Fourteenth Amendment continues to rage.

In the Slaughter-House Cases (1873), the Supreme Court pulled away from an expansive application of Section 1 of the Fourteenth Amendment. The state of Louisiana had the right to create “reasonable” laws, and “reasonable” was defined as applying equally to all. The federal government had no responsibility to supervise the states and should concern itself with fundamental rights. The Court's majority refused to explore the meaning of “privileges or immunities.” In the Civil Rights Cases (1883), the Supreme Court struck down the Civil Rights Act of 1875, which prevented discrimination in public accommodations and by private individuals. The Court claimed that the Fourteenth Amendment dealt only with discrimination by state governments. Sadly, the Court's majority in Plessy v. Ferguson (1896) reached the conclusion that “separate but equal” facilities were constitutional.

The concept of due process evolved in important ways. In several cases the Supreme Court examined the substance of state laws to determine whether individuals' liberty and property were unfairly impinged. In Munn v. Illinois (1876) the Court declared that the state of Illinois could serve the public good by imposing maximum rates charged by grain-storage operators, even though those operators might lose profits. In Santa Clara County v. Southern Pacific Railroad Company (1886) the Court broadened the definition of person to include corporations, who then sought relief from state regulations as an infringement of their property under due process. The Supreme Court began to inspect the details of laws, not just the procedures. This is termed “substantive due process.” Such an approach led to the striking down of state regulation of businesses, including laws setting maximum work hours or improving working conditions. Lochner v. New York (1905) is often cited as the classic statement of the doctrine. Amidst the massive distress caused by the Great Depression, applying substantive due process to economic regulation was discredited. What is significant is that substantive due process shifted to the “equal protection of the laws” portion of the Fourteenth Amendment.

In the late 1930s Justice Hugo Black suggested that the equal protection clause meant that the federal government had the responsibility to impose the Bill of Rights on the states. The so-called doctrine of incorporation, whereby the Fourteenth Amendment incorporates the liberties in the Bill of Rights and allows the courts to apply them to state laws, is quite controversial. Cases involving gay rights and affirmative action rely on Section 1 of the Fourteenth Amendment. The Supreme Court in Griswold v. Connecticut (1965) said the Bill of Rights and the Fourteenth Amendment created a zone of privacy for individuals against government intrusion. As such, in Roe v. Wade (1973) the Supreme Court ruled that state laws forbidding abortion represented a violation of a woman's right to privacy and were unconstitutional.

In today's society Section 1 has made it clear that the ways in which states treat their own citizens is a question of federal law. The responsibility of interpreting the Fourteenth Amendment has fallen into the hands of the federal judiciary and has significantly shifted the balance of power in our federal system. The debate over what rights the Fourteenth Amendment protects and the extent of substantive due process to investigate state laws will continue well into the future.

The fates of the other sections of the Fourteenth Amendment were relatively anticlimactic. The Fifteenth Amendment, which allows Black suffrage, largely supplanted Section 2. Furthermore, despite decades of regulations in southern states inhibiting Black voting, Section 2 was never invoked. No attempt was made to diminish southern congressional delegations. By the late 1890s those former Confederates who were adversely affected by section 3 were either dead or had been pardoned by Congress. In a symbolic vote in 1978 Congress removed the political disability of Jefferson Davis and Robert E. Lee. With regard to Section 4 the status of the debts of the Union and Confederacy was never in doubt.