“Constitutional Amendments” Series – Amendment XIV – “Citizenship, Equal Protection, Apportionment, and War Debts”

E.W. Kemble political cartoon satirizing Congress being inactive in enforcing Section 2 of the Fourteenth Amendment, c. 1902. (Library of Congress)

Amendment Fourteen to the Constitution – the second of the three Reconstruction Amendments – was ratified on July 9, 1868. It grants citizenship to all people born in the United States, provides them equal protection and due process, has seats in the House of Representatives determined by a total population count, forbids Confederate loyalists from holding political and military office, and excuses debts incurred by the federal and state governments in the Civil War. The official text is written as such:

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.

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.

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.

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.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

The Constitution as it was enacted in 1789 gave no clear answer as to who was considered an American citizen. Article II implies that citizenship as a concept exists,, since it stipulates that only a citizen born in the United States is eligible to run for the office of President. Article III further asserts that the federal court system has the authority to cover legal action among citizens of different states. The 1857 Supreme Court case of Dred Scott v. Sandford propelled the citizenship debate even further. Scott was a slave from Missouri who was travelling with his master when they arrived in Illinois and the neighboring Wisconsin territory, both where slavery was not allowed. He sued his master’s estate on the grounds that since the master willingly took him through a free part of the country, he should be freed from slavery accordingly. In a 7 to 2 ruling, Chief Justice Roger Taney determined that since Scott was an African slave, and that the Constitutiton implied that state and national citizenship was dictated by a person’s ethnicity, he was not entitled to citizenship, irrespective of his location in a free or slave territory. This decision was met with considerable controversy among abolitionist groups and the recently-formed Republican Party, as one of their goals was to stop the spread of slavery into the territories that had not yet become states. Under the leadership of Abraham Lincoln, the Republican Party won the election of 1860, and would hold prominence in the federal government through the Civil War and the Reconstruction Era. In 1866, one year after the Civil War ended, the Civil Rights Act was passed by Congress, asserting that all people “born or naturalized in the United States” were citizens on a national and state level. The act was designed largely to counter the discriminatory “Black Codes” in the rebuilt governments of the Southern states, which had in turn led to increased violence against the newly-freed African American population. Key elements of the 1866 Civil Rights Act were eventually recycled and placed into Sections 1 and 2 of the Fourteenth Amendment in 1868. The new amendment finally gave the Constitution a definitive answer regarding the nature of national and state citizenship, and additionally extended the rights of due process and equal protection under the law to the state level. The procedural protections (life, liberty, and property), the entire Bill of Rights (freedom of speech, right to bear arms, legal protection), and the non-enumerated fundamental rights of the citizen were all extended to every American citizen in the United States with the Fourteenth Amendment. The Fourteenth Amendment, particularly Section 1’s wording of due process and equal protection, would be extensively used in the 20th and early 21st centuries, such as the Supreme Court decisions of Brown v. Board of Education of Topeka (racial discrimination in public schools unconstitutional), Loving v. Virginia (laws forbidding interracial marriage declared unconstitutional), and Obergefell v. Hodges (laws forbidding homosexual marriages declared unconstitutional).

Section 2 of the Fourteenth Amendment focuses on the way individual citizens are counted to determine electoral power for the states. The previous Thirteenth Amendment eliminated the Three-Fifths Clause in Article I of the Constitution, as every slave in the United States had been legally freed. The post-war Congress was concerned that even with slavery being eliminated, the returning Southern states would try to find ways to deprive the constitutional rights of the newly-freed African American population. An amendment was subsequently proposed that would deprive the electoral power of certain states if it was revealed that the state was still depriving citizenship from the people. The wording of the clause at the time of the amendment’s publication considered those who were targeted by discriminatory laws to be “male inhabitants of such State, being twenty-one years of age, and citizens of the United States.” The future Twenty-sixth Amendment later changed this voting age to eighteen years of age.

Section 3 keeps political and military leaders who had previously fought with, or supported groups, against the United States in an “insurrection or rebellion,” from holding public office. The provisions were drafted in response to the returned Southern states sending former Confederate leaders and veterans to Congress as elected representatives. The provisions were met with criticism by the Southern states, with certain Representatives and Senators arguing that it ran contrary to the pursuit of national unity and reconciliation in a post-war United States. Under the administration of Ulysses S. Grant, the Amnesty Act of 1872 removed the restrictions on certain former senior leaders from the Confederacy. Amid the patriotic fervor of the Spanish-American War, Congress expanded the amnesty to more Confederate veterans and former leaders in 1898. Although Section 3 has been referred to and referenced by lawmakers in several different cases, it was invoked in a legal case only once. Victor L. Berger, a Socialist politician from Wisconsin, was denied his elected seat in the House of Representatives. The charge was that he opposed the United States’ entry into World War I, which was considered a violation of the Espionage Act. The conviction was overruled in 1921 in Berger v. United States, after which Berger served in the House of Representatives for three terms in the 1920s.

Section 4 of the Fourteenth Amendment renders all public debt accumulated by Congress to be legitimate, and determined that the state and federal governments are under no obligation to compensate for the lost financial value of the freed slaves or the Confederacy’s war debts. In the early 21st century, the section has been used in discussions regarding the President having the authority to raise the debt-ceiling. Those who supported the President having the authority to raise the debt-ceiling have argued that the section gives the federal government the authority to do so, which would include the President by extension. Opponents have conversely argued that there is no explicit section of the Constitution that specifically grants the President that authority. Section 5 accordingly gives Congress the authority to enforce the Fourteenth Amendment. In the post-Civil War era, Section 5 was applied with little range or scope, as the 1883 Civil Rights Cases determined that it could only be used to counter violations of the previous listed sections only, with no room for considerations beyond what was officially written for the amendment. The Supreme Court later determined that Section 5 was acceptable in banning literacy requirements for voting after the passage of the Voting Rights Act of 1965. The Fourteenth Amendment was created as one portion of a larger series of amendments to address one specific issue, but its applicability would be proven in several more cases surrounding the expansion and interpretation of American civil liberties.

Written by Nicholas J. Dilley, Ronald Reagan Presidential Library & Museum

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