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Fourteenth Amendment to the United States Constitution#Ratification by the states
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{{Short description|1868 amendment addressing citizenship rights and civil and political liberties}}{{pp-vandalism|small=yes}}{{pp-move}}{{use mdy dates|date=February 2021}}{{US Constitution article series}}The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Usually considered one of the most consequential amendments, it addresses citizenship rights and equal protection under the law and was proposed in response to issues related to formerly enslaved Americans 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 Supreme Court decisions such as Brown v. Board of Education (1954) regarding racial segregation, Loving v. Virginia (1967) regarding interracial marriage, Roe v. Wade (1973) regarding abortion (overturned in 2022), Bush v. Gore (2000) regarding the 2000 presidential election, Obergefell v. Hodges (2015) regarding same-sex marriage, and Students for Fair Admissions v. Harvard (2023) regarding race-based college admissions. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials.The amendment's first section includes the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The Citizenship Clause broadly defines citizenship, superseding the Supreme Court's decision in Dred Scott v. Sandford (1857), which had held that Americans descended from African slaves could not be citizens of the United States. Since the Slaughter-House Cases (1873), the Privileges or Immunities Clause has been interpreted to do very little.The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without a fair procedure. The Supreme Court has ruled that this clause makes most of the Bill of Rights as applicable to the states as it is to the federal government, 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 non-citizens, within its jurisdiction. This clause has been the basis for many decisions rejecting 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, or other crime" has been invoked as a constitutional ground for felony disenfranchisement. It was held, under Trump v. Anderson (2024), that only the federal government can enforce section three and not the states. The fourth section was held, in Perry v. United States (1935), to prohibit 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. The Reconstruction Amendments and thus the Fourteenth Amendment "were specifically designed as an expansion of federal power and an intrusion on state sovereignty."WEB, City of Rome v. United States, 446 U.S. 156 (1980), at 179,weblink Justia US Supreme Court Center, March 4, 2024,weblink March 4, 2024, April 22, 1980, The Reconstruction Amendments affected the constitutional division of power between U.S. state governments and the federal government of the United States,NEWS, Sherrilyn A. Ifill, Freedom Still Awaits,weblink May 5, 2024, The Atlantic, The Atlantic, October 28, 2015,weblink June 6, 2023, for "The Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy†and thus “fundamentally altered the balance of state and federal power struck by the Constitution.†Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 59 (1996); see also Ex parte Virginia, 100 U. S. 339, 345 (1880)."WEB, Trump v. Anderson, 601 U.S. ___ (2024), Per Curiam, at page 4,weblink United States Supreme Court, March 4, 2024,weblink March 4, 2024, March 4, 2024, - the content below is remote from Wikipedia
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Section 1: Citizenship and civil rights
Background
{{multiple image| align = right| image1 = 14th Amendment Pg1of2 AC.jpg| width1 = 190| alt1 =| caption1 =| image2 = 14th Amendment Pg2of2 AC.jpg| width2 = 190| alt2 =| caption2 =| National Archives and Records Administration>National Archives, written with iron gall ink on parchment. It was last publicly displayed in 2013, but as of 2024 is stored in a box in the research wing of the archives, in a book of Act of Congress | from its 39th United States Congress>39th session.HTTPS://WWW.NPR.ORG/TRANSCRIPTS/1229487068 >TITLE=I WENT HUNTING FOR THE 14TH AMENDMENT, THE DOCUMENT THAT COULD BAR TRUMP FROM BALLOTS | DATE=FEBRUARY 7, 2024, }}Section 1NEWS, Blight, David W., Slavery Did Not Die Honestly,weblink May 5, 2024, The Atlantic, October 21, 2015,weblink February 23, 2024, 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 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. However, Congress can sometimes reach such discrimination via other parts of the Constitution such as the Commerce Clause which Congress used to enact the Civil Rights Act of 1964—the Supreme Court upheld this approach in Heart of Atlanta Motel v. United States (1964).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 [Fourteenth] 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."WEB, Civil Rights Cases (1883),weblink Pearson Education, Inc., publishing as Pearson Prentice Hall, Pearson Education, October 23, 2013, 2005, January 14, 2021,weblink live, 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.Graber, "Subtraction by Addition?" (2012), p. 1523. 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.{{sfn|Goldstone|2011|pp=23–24}}Eric Foner, "The Second American Revolution", In These Times, September 1987; reprinted in Civil Rights Since 1787, ed. Jonathan Birnbaum & Clarence Taylor, NYU Press, 2000. {{ISBN|0814782493}}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.JOURNAL,weblink Finkelman, Paul, John Bingham and the Background to the Fourteenth Amendment, Akron Law Review, 2003, 36, 671, April 2, 2009, February 22, 2014,weblink live, The U.S. Supreme Court stated in Shelley v. Kraemer (1948) that the historical context leading to the Fourteenth Amendment's adoption must be taken into account, that this historical context reveals the Amendment's fundamental purpose and that the provisions of the Amendment are to be construed in light of this fundamental purpose.WEB, Shelley v. Kraemer, 334 U.S. 1 (1948) at 23.,weblink Justia US Supreme Court Center, December 24, 2020, May 2, 1948, January 14, 2021,weblink live, In its decision the Court said:{{blockquote|The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. [...] [T]he provisions of the Amendment are to be construed with this fundamental purpose in mind.WEB, Shelley v. Kraemer, 334 U.S. 1 (1948) at 23.,weblink Justia US Supreme Court Center, December 24, 2020, May 2, 1948, January 14, 2021,weblink live, }}Section 1 has been the most frequently litigated part of the amendment,Harrell, David and Gaustad, Edwin. Unto A Good Land: A History Of The American People, Volume 1, p. 520 (Eerdmans Publishing, 2005): "The most important, and the one that has occasioned the most litigation over time as to its meaning and application, was Section One." and this amendment in turn has been the most frequently litigated part of the Constitution.Stephenson, D. The Waite Court: Justices, Rulings, and Legacy, p. 147 (ABC-CLIO, 2003).WEB, 14th Amendment to the U.S. Constitution: Primary Documents in American History,weblink Library of Congress, May 3, 2024,weblink May 3, 2024, The primary author of the Fourteenth Amendment's first section was John Bingham.WEB, 12.5 Primary Source: John Bingham, One Country, One Constitution, One People (1866),weblink National Constitution Center, May 3, 2024,weblink May 3, 2024, WEB, Tom Donnelly, John Bingham: One of America’s forgotten “Second Foundersâ€,weblink National Constitution Center, May 3, 2024,weblink May 3, 2024, July 9, 2018, Citizenship ClauseFile:Jacob M. Howard - Brady-Handy.jpg|thumb|upright|U.S. Senator from Michigan Jacob M. HowardJacob M. HowardThe 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.Multiple sources:
Native AmericansDuring the original congressional debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship ClauseLaFantasie, Glenn (March 20, 2011) "The erosion of the Civil War consensus", Salon {{webarchive|url=https://web.archive.org/web/20110323115737weblink|date=March 23, 2011 }}—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".Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893 {{Webarchive|url=https://web.archive.org/web/20210114215311weblink |date=January 14, 2021 }}. Senator Reverdy Johnson said in the debate: "Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States ... If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States, there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States." 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.Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2897 {{Webarchive|url=https://web.archive.org/web/20210114215312weblink |date=January 14, 2021 }}Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 572 {{Webarchive|url=https://web.archive.org/web/20210114215313weblink |date=January 14, 2021 }}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,Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2890, 2892–4, 2896 {{Webarchive|url=https://web.archive.org/web/20210114215253weblink |date=January 14, 2021 }} but Senate Judiciary Committee Chairman Lyman 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.Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893 {{Webarchive|url=https://web.archive.org/web/20210114215256weblink |date=January 14, 2021 }}. Trumbull, during the debate, said, "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means." He then proceeded to expound upon what he meant by "complete jurisdiction": "Can you sue a Navajoe Indian in court? ... We make treaties with them, and therefore they are not subject to our jurisdiction.{{nbsp}}... If we want to control the Navajoes or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? ... Would he [Senator Doolittle] think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? ... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens."Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2895 {{Webarchive|url=https://web.archive.org/web/20210114215255weblink |date=January 14, 2021 }}. Howard additionally stated the word jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now" and that the U.S. possessed a "full and complete jurisdiction" over the person described in the amendment. In Elk v. Wilkins (1884),Elk v. Wilkins, {{ussc|112|94|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.BOOK, Urofsky, Melvin I., Finkelman, Paul, A March of Liberty: A Constitutional History of the United States, 2nd, Oxford University Press, New York, 2002, 1, 978-0195126358,weblink October 2, 2020, February 18, 2017,weblink live, The issue was resolved with the passage of the Indian Citizenship Act of 1924, which granted full U.S. citizenship to indigenous peoples.JOURNAL,weblinkweblink" title="web.archive.org/web/20130904142854weblink">weblink dead, September 4, 2013, Multilayered loyalties: Oregon Indian women as citizens of the land, their tribal nations, and the united States, Reid, Kay, September 22, 2012, Oregon Historical Quarterly, 113, 3, 392–407, 10.1353/ohq.2012.0022, 245846206, July 18, 2013,Children born to foreign nationalsThe Fourteenth Amendment provides that children born in the United States and subject to its jurisdiction become American citizens at birth. The principal framer John Armor Bingham said during the 39th United States Congress two years before its passing:9 March 1866 Congressional Globe 39.1 (1866) p. 1291 {{Webarchive|url=https://web.archive.org/web/20210114215258weblink |date=January 14, 2021 }}. (middle column, 2nd paragraph){{blockquote|I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen; but, sir, I may be allowed to say further that I deny that the Congress of the United States ever had the power, or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States. [emphasis added]}}At the time of the amendment's passage, President Andrew Johnson and three senators, including Trumbull, the author of the Civil Rights Act, asserted that both the Civil Rights ActCongressional Globe, 1st Session, 39th Congress, pt. 1, p. 2893 {{Webarchive|url=https://web.archive.org/web/20210114215314weblink |date=January 14, 2021 }}. From the debate on the Civil Rights Act:Mr. Johnson: "... Who is a citizen of the United States is an open question. The decision of the courts and doctrine of the commentators is, that every man who is a citizen of the State becomes ipso facto a citizen of the United States; but there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State ..."Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 498 {{Webarchive|url=https://web.archive.org/web/20210114215256weblink |date=January 14, 2021 }}. The debate on the Civil Rights Act contained the following exchange:Mr. Cowan: "I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?"Mr. Trumbull: "Undoubtedly."...Mr. Trumbull: "I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens."Mr. Cowan: "The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument."Mr. Trumbull: "If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European." and the Fourteenth Amendment would confer citizenship to children born to foreign nationals in the United States.Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2891–2892 {{Webarchive|url=https://web.archive.org/web/20210114215259weblink |date=January 14, 2021 }} During the debate on the Amendment, Senator John Conness of California declared, "The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law [the Civil Rights Act]; now it is proposed to incorporate that same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage, whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal Civil Rights with other citizens."WEB,weblink Veto of the Civil Rights Bill, Teaching American History, February 21, 2019, August 29, 2013,weblink" title="web.archive.org/web/20130829163129weblink">weblink live, Senator Edgar Cowan of Pennsylvania had a decidedly different opinion.Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 2891 {{Webarchive|url=https://web.archive.org/web/20210114215315weblink |date=January 14, 2021 }}. From the debate on the Civil Rights Act:Mr. Cowan: "Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to a society than I look upon Gypsies. I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit ..." Some scholars dispute whether the Citizenship Clause should apply to the children of unauthorized immigrants today, as "the problem{{nbsp}}... did not exist at the time".Lee, Margaret. "Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents", {{Webarchive|url=https://web.archive.org/web/20210114215219weblink |date=January 14, 2021 }}, Congressional Research Service (August 12, 2010): "Over the last decade or so, concern about illegal immigration has sporadically led to a re-examination of a long-established tenet of U.S. citizenship, codified in the Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution and §301(a) of the Immigration and Nationality Act (INA) (8 U.S.C. §1401(a)), that a person who is born in the United States, subject to its jurisdiction, is a citizen of the United States regardless of the race, ethnicity, or alienage of the parents{{nbsp}}... some scholars argue that the Citizenship Clause of the Fourteenth Amendment should not apply to the children of unauthorized aliens because the problem of unauthorized aliens did not exist at the time the Fourteenth Amendment was considered in Congress and ratified by the states." In the 21st century, Congress has occasionally discussed passing a statute or a constitutional amendment to reduce the practice of "birth tourism", in which a foreign national gives birth in the United States to gain the child's citizenship.JOURNAL,weblink 14th Amendment: why birthright citizenship change 'can't be done', Peter Grier, August 10, 2010, Christian Science Monitor, June 12, 2013, December 28, 2012, live,weblink" title="web.archive.org/web/20121228062454weblink">weblink The clause's meaning with regard to a child of immigrants was tested in United States v. Wong Kim Ark (1898).United States v. Wong Kim Ark, {{ussc|169|649|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 out 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.JOURNAL, The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment [PDF],weblink 2009, Rodriguez, C. M., University of Pennsylvania Journal of Constitutional Law, 1363–1475, 11, January 20, 2011,weblink" title="web.archive.org/web/20110715063130weblink">weblink July 15, 2011, dead, mdy-all, According to the Foreign Affairs Manual, which is published by the State Department, "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."WEB,weblink 8 FAM 301.1–3 Not Included in the Meaning of 'In the United States', United States Department of State, July 18, 2018, May 2, 2019,weblink live,Loss of citizenshipLoss of national citizenship is possible only under the following circumstances:
Privileges or Immunities ClauseThe 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.Slaughter-House Cases, {{ussc|83|36|1873}}. 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.BOOK, Beatty, Jack, Age of Betrayal: The Triumph of Money in America, 1865–1900,weblink July 19, 2013, 2008, Vintage Books, New York, 978-1400032426, 135, January 14, 2021,weblink live, 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.e.g., United States v. Morrison, {{ussc|529|598|2000}}. Largely as a result of the narrowness of the Slaughter-House opinion, this clause subsequently lay dormant for well over a century.Shaman, Jeffrey. Constitutional Interpretation: Illusion and Reality, p. 248 (Greenwood Publishing 2001).In Saenz v. Roe (1999),Saenz v. Roe, {{ussc|526|489|1999}}. the Court ruled that a component of the "right to travel" is protected by the Privileges or Immunities Clause:{{blockquote|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.Bogen, David. Privileges and Immunities: A Reference Guide to the United States Constitution, p. 104 (Greenwood Publishing 2003).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.WEB, Barnett, Randy, June 28, 2010, Privileges or Immunities Clause alive again,weblink SCOTUSblog, June 4, 2020, May 13, 2013,weblink" title="web.archive.org/web/20130513160954weblink">weblink live, In Timbs v. Indiana (2019), Justice Thomas and Justice Neil Gorsuch, in separate concurring opinions, declared the Excessive Fines Clause of the Eighth Amendment was incorporated against the states through the Privileges or Immunities Clause instead of the Due Process Clause.WEB, Howe, Amy, February 20, 2019, Opinion analysis: Eighth Amendment's ban on excessive fines applies to the states,weblink SCOTUSblog, June 4, 2020, January 14, 2021,weblink live,Due Process ClauseDue process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law.WEB, Madison, P.A., Historical Analysis of the first of the 14th Amendment's First Section,weblink The Federalist Blog, January 19, 2013, August 2, 2010,weblink" title="web.archive.org/web/20191118145152weblink">weblink November 18, 2019, WEB, The Bill of Rights: A Brief History,weblink ACLU, April 21, 2015,weblink August 30, 2016, live, WEB, Honda Motor Co. v. Oberg, 512 U.S. 415 (1994), at 434,weblink Justia US Supreme Court Center, August 26, 2020, June 24, 1994, There is, however, a vast difference between arbitrary grants of freedom and arbitrary deprivations of liberty or property. The Due Process Clause has nothing to say about the former, but its whole purpose is to prevent the latter., January 14, 2021,weblink live, The Supreme Court has described due process consequently as "the protection of the individual against arbitrary action."WEB, Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292 (1937), at 302.,weblink Justia US Supreme Court Center, February 10, 2021, April 26, 1937, In 1855, the Supreme Court explained that, to ascertain whether a process is due process, the first step is to "examine the constitution itself, to see whether this process be in conflict with any of its provisions."Murray v. Hoboken Land, {{ussc|59|272|1855}} In Hurtado v. California (1884), the U.S. Supreme Court said:Hurtado v. California, {{ussc|110|516|1884}}{{blockquote|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.}}| width = 27%| align = right| style = padding:8px;}}The Due Process Clause has been used to strike down legislation. The Fifth and Fourteenth Amendments for example do not prohibit governmental regulation for the public welfare. Instead, they only direct the process by which such regulation occurs. As the Court has held before, such due process "demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained."Nebbia v. New York, {{ussc|291|502|1934}}, at 525. Despite the foregoing citation the Due Process Clause enables the Supreme Court to exercise its power of judicial review, "because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure."New State Ice Co. v. Liebmann, {{ussc|285|262|1932}}, at 311. Justice Louis Brandeis observed in his concurrence opinion in Whitney v. California, 274 U.S. 357, 373 (1927), that "[d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States."Whitney v. California, {{ussc|274|357|1927}}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.BOOK, Curry, James A., Constitutional Government: The American Experience, 2003, Kendall/Hunt Publishing Company, 978-0787298708, 210,weblink Riley, Richard B., Battiston, Richard M., July 14, 2013, 6,weblink 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.ENCYCLOPEDIA, 2009, Due process, Encyclopedia of American Business, Infobase, Gupta, Gayatri, Folsom, W. Davis, Rick, Boulware, 134, Furthermore, as observed by Justice John M. Harlan II in his dissenting opinion in Poe v. Ullman, 367 U.S. 497, 541 (1961), quoting Hurtado v. California, 110 U.S. 516, 532 (1884), "the guaranties of due process, though having their roots in Magna Carta's 'per legem terrae' and considered as procedural safeguards 'against executive usurpation and tyranny', have in this country 'become bulwarks also against arbitrary legislation'."Poe v. Ullman, {{ussc|367|497|1961}} In Planned Parenthood v. Casey (1992) it was observed: "Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U. S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U. S. 327, 331 (1986)."NEWS, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), at 846., Justia Law,weblink Justia US Supreme Court Center, March 22, 2022, June 29, 1992, 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.JOURNAL, Cord, Robert L., The Incorporation Doctrine and Procedural Due Process Under the Fourteenth Amendment: An Overview, Brigham Young University Law Review, 1987, 3, 868,weblink July 14, 2013, January 14, 2021,weblink live, The Due Process clause applies regardless whether one is a citizen of the United States of America or not.The Supreme Court of the United States interprets the clauses broadly, concluding that these clauses provide three protections: procedural due process (in civil and criminal proceedings); substantive due process; and as the vehicle for the incorporation of the Bill of Rights.WEB, Nathan S. Chapman and Kenji Yoshino, Interpretation & Debate: The Fourteenth Amendment Due Process Clause,weblink National Constitution Center, April 11, 2024,weblink April 11, 2024,Substantive due processBeginning with Allgeyer v. Louisiana (1897),Allgeyer v. Louisiana, {{ussc|169|649|1897}}. the U.S. Supreme 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".{{citation needed|date=August 2022}} A unanimous court held with respect to the noun "liberty" mentioned in the Fourteenth Amendment's Due Process Clause:The 'liberty' mentioned in [the Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.Allgeyer, 165 U.S. at 589 (emphasis added).Relying on the principle of "freedom of contract" the Court struck down a law decreeing maximum hours for workers in a bakery in Lochner v. New York (1905)Lochner v. New York, {{ussc|198|45|1905}}. and struck down a minimum wage law in Adkins v. Children's Hospital (1923).Adkins v. Children's Hospital, {{ussc|261|525|1923}}. In Meyer v. Nebraska (1923),Meyer v. Nebraska, {{ussc|262|390|1923}}. the Court stated that the "liberty" protected by the Due Process Clause{{blockquote|[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.WEB,weblink CRS Annotated Constitution, Cornell University Law School Legal Information Institute, June 12, 2013, November 10, 2013,weblink" title="web.archive.org/web/20131110102946weblink">weblink live, mdy, }}However, the Court did uphold some economic regulation, such as state Prohibition laws (Mugler v. Kansas, 1887),Mugler v. Kansas, {{ussc|123|623|1887}}. laws declaring maximum hours for mine workers (Holden v. Hardy, 1898),Holden v. Hardy, {{ussc|169|366|1898}}. laws declaring maximum hours for female workers (Muller v. Oregon, 1908),Muller v. Oregon, {{ussc|208|412|1908}}. and President Woodrow Wilson's intervention in a railroad strike (Wilson v. New, 1917),Wilson v. New, {{ussc|243|332|1917}}. as well as federal laws regulating narcotics (United States v. Doremus, 1919).United States v. Doremus, {{ussc|249|86|1919}}. The Court repudiated, but did not explicitly overrule, the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937).West Coast Hotel v. Parrish, {{ussc|300|379|1937}}. In its decision the Court stated:{{blockquote|The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. This essential limitation of liberty in general governs freedom of contract in particular.WEB, West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), at 391–392.,weblink Justia US Supreme Court Center, January 8, 2021, March 29, 1937, January 14, 2021,weblink live, }}The Court has interpreted the term "liberty" in the Due Process Clauses of the Fifth and Fourteenth Amendments in Bolling v. Sharpe (1954) broadly:{{blockquote|Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.Bolling v. Sharpe, {{ussc|347|497|1954}}, at 499–500.NEWS, Huston, Luther A., High Court Bans School Segregation; 9-to-0 Decision Grants Time to Comply,weblink March 6, 2013, The New York Times, May 18, 1954, January 14, 2021,weblink live, }}In Poe v. Ullman (1961), dissenting Justice John Marshall Harlan II adopted a broad view of the "liberty" protected by the Fourteenth Amendment Due Process clause:{{blockquote|[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{{nbsp}}... 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.Poe v. Ullman, 367 U.S. 497 (1961), at 543 {{Webarchive|url=https://web.archive.org/web/20210114215326weblink |date=January 14, 2021 }}}}| width = 27%| align = right| style = padding:8px;}}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.{{citation needed|date=August 2022}} 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.Griswold v. Connecticut, {{ussc|381|479|1965}} 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.ENCYCLOPEDIA,weblinkweblink" title="web.archive.org/web/20130905041203weblink">weblink dead, September 5, 2013, Griswold v. Connecticut, January 1, 2000, Encyclopedia of the American Constitution, June 16, 2013, The above-mentioned broad view of liberty embraced by dissenting Justice John Marshall Harlan II in Poe v. Ullman (1961) was adopted by the Supreme Court in Griswold v. Connecticut.Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, at 849 {{Webarchive|url=https://web.archive.org/web/20210114215320weblink|date=January 14, 2021}}The right to privacy was the basis for Roe v. Wade (1973),Roe v. Wade, {{ussc|410|113|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.ENCYCLOPEDIA,weblinkweblink" title="web.archive.org/web/20140610054110weblink">weblink dead, June 10, 2014, Roe v. Wade 410 U.S. 113 (1973) Doe v. Bolton 410 U.S. 179 (1973), January 1, 2000, Encyclopedia of the American Constitution, June 16, 2013, In Planned Parenthood v. Casey (1992),Planned Parenthood v. Casey, {{ussc|505|833|1992}}. the Court decided that "the essential holding of Roe v. Wade should be retained and once again reaffirmed."Casey, 505 U.S. at 845–846. The Court overruled both Roe and Casey in Dobbs v. Jackson Women's Health Organization (2022).WEB, June 24, 2022, Supreme Court overturns constitutional right to abortion,weblink March 23, 2024, SCOTUSblog,weblink April 2, 2024, In Lawrence v. Texas (2003),Lawrence v. Texas, {{ussc|539|558|2003}}. the Court found that a Texas law against same-sex sexual intercourse violated the right to privacy.JOURNAL,weblinkweblink" title="web.archive.org/web/20140610055840weblink">weblink dead, June 10, 2014, Surviving Lawrence v. Texas, Spindelman, Marc, June 1, 2004, Michigan Law Review, 102, 7, 1615–1667, 10.2307/4141915, 4141915, June 16, 2013, In Obergefell v. Hodges (2015), the Court ruled that the fundamental right to marriage included same-sex couples being able to marry.WEB,weblink In historic decision, Court strikes down state bans on same-sex marriage: In Plain English, Howe, Amy, June 26, 2015, SCOTUSblog, July 8, 2015, January 14, 2021,weblink live,Procedural due processWhen 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.BOOK, White, Bradford, Procedural Due Process in Plain English, National Trust for Historic Preservation, 2008, 978-0891335733, See also Mathews v. Eldridge (1976). 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),Caperton v. A.T. Massey Coal Co., {{ussc|556|868|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.NEWS,weblink Justices Set New Standard for Recusals, Bravin, Jess, Maher, Kris, June 8, 2009, The Wall Street Journal, June 9, 2009, January 14, 2021, live,weblinkIncorporation of the Bill of RightsWhile 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),Barron v. Baltimore, {{ussc|32|243|1833}}. the Supreme Court unanimously ruled that the Bill of Rights restrained only the federal government, not the states.ENCYCLOPEDIA,weblinkweblink" title="web.archive.org/web/20150329133228weblink">weblink dead, March 29, 2015, Barron v. City of Baltimore 7 Peters 243 (1833), Levy, Leonard W., Encyclopedia of the American Constitution, January 2000, June 13, 2013, 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.ENCYCLOPEDIA,weblink 2006, Bingham, John Armor, Encyclopedia of American Civil Liberties, CRC Press, Foster, James C., Paul, Finkelman, 145, 978-0415943420, October 2, 2020, January 14, 2021,weblink live, 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 these rights were likely understood as falling within the "privileges or immunities" safeguarded by the amendment.JOURNAL, Amar, Akhil Reed, 1992, The Bill of Rights and the Fourteenth Amendment, Yale Law Journal, 101, 6, 1193–1284, 10.2307/796923,weblink 796923, dead,weblink" title="web.archive.org/web/20081019233856weblink">weblink October 19, 2008, By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states.WEB,weblink Duncan v. Louisiana (Mr. Justice Black, joined by Mr. Justice Douglas, concurring), May 20, 1968, Cornell Law School – Legal Information Institute, April 26, 2009, January 14, 2021,weblink live, 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, along with the Excessive Fines Clause and Cruel and Unusual Punishment Clause of the Eighth Amendment.BOOK, Levy, Leonard, Fourteenth Amendment and the Bill of Rights: The Incorporation Theory (American Constitutional and Legal History Series), Da Capo Press, 1970, 978-0306700293, 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.677 F.2d 957 (1982) The Seventh Amendment right to jury trial in civil cases has been held not to be applicable to the states,WEB,weblink Minneapolis & St. Louis R. Co. v. Bombolis (1916), Justia, May 22, 1916, August 1, 2010, January 14, 2021,weblink live, but the amendment's Re-Examination Clause does apply to "a case tried before a jury in a state court and brought to the Supreme Court on appeal."WEB, Seventh Amendment – Civil Trials,weblink U.S. Government Printing Office, July 4, 2013, 1464, 1992, January 14, 2013,weblink" title="web.archive.org/web/20130114193908weblink">weblink live, The Excessive Fines Clause of the Eighth Amendment became the last right to be incorporated when the Supreme Court ruled in Timbs v. Indiana (2019) that right to apply to the states.WEB,weblink Opinion analysis: Eighth Amendment's ban on excessive fines applies to the states, Amy Howe, SCOTUSblog, February 20, 2019, February 20, 2019, January 14, 2021,weblink live,Equal Protection ClauseFile:BinghamFacingForward.jpg|thumb|upright=0.8|Rep. John BinghamJohn BinghamThe 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.{{sfn|Goldstone|2011|pp=20, 23–24}}WEB, Madison, P.A., Historical Analysis of the first of the 14th Amendment's First Section,weblink The Federalist Blog, January 19, 2013, August 2, 2010,weblink" title="web.archive.org/web/20191118145152weblink">weblink November 18, 2019, The Supreme Court in Strauder v. West Virginia (1880) said the Fourteenth Amendment not only gave citizenship and the privileges of citizenship to persons of color, it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation.WEB, Strauder v. West Virginia, 100 U.S. 303 (1880) at pp. 306–307,weblink Justia US Supreme Court Center, April 3, 2020, March 1, 1880, January 14, 2021,weblink live, In this decision the Supreme Court stated specifically that the Equal Protection Clause was{{Blockquote|text=designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.}}The Equal Protection Clause applies to citizens and non-citizens alike. The clause mandates that individuals in similar situations be treated equally by the law.ENCYCLOPEDIA, 2009,weblink Equal protection of the laws, The Encyclopedia of American Law, Infobase, Failinger, Marie, David Andrew, Schultz, 152–153, 978-1438109916,weblink July 24, 2020, "The equal protection clause guarantees the right of "similarly situated" people to be treated the same way by the law.", WEB, Fair Treatment by the Government: Equal Protection,weblink GeorgiaLegalAid.org, Carl Vinson Institute of Government at University of Georgia, July 24, 2020,weblink March 20, 2020, July 30, 2004, "The basic intent of equal protection is to make sure that people are treated as equally as possible under our legal system. For example, it is to see that everyone who gets a speeding ticket will face the same procedures. A further intent is to ensure that all Americans are provided with equal opportunities in education, employment, and other areas. [...] The U.S. Constitution makes a similar provision in the Fourteenth Amendment. It says that no state shall make or enforce any law that will "deny to any person within its jurisdiction the equal protection of the law." These provisions require the government to treat persons equally and impartially.", WEB, Equal Protection,weblink Legal Information Institute at Cornell Law School, July 24, 2020,weblink June 22, 2020, "Equal Protection refers to the idea that a governmental body may not deny people equal protection of its governing laws. The governing body state must treat an individual in the same manner as others in similar conditions and circumstances.", The purpose of the clause is not only to guarantee equality both in laws for security of person as well as in proceedings, but also to insure the "equal right to the laws of due process and impartially administered before the courts of justice." 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".JOURNAL, Primus, Richard, Bolling Alone, Columbia Law Review, May 2004, 104, 4, 975–1041, 10.2307/4099366, 4099366, 464847, Bolling v. Sharpe, 347 U.S. 497 (1954)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:Yick Wo v. Hopkins, {{ussc|118|356|1886}}.WEB, Annotation 18 – Fourteenth Amendment: Section 1 – Rights Guaranteed: Equal Protection of the Laws: Scope and application state action,weblink FindLaw for Legal Professionals – Law & Legal Information by FindLaw, a Thomson Reuters business, November 23, 2013, January 14, 2021,weblink live, {{blockquote|text=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 claimsPlyler v. Doe, {{ussc|457|202|1982|pin=210–16}}. 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:{{blockquote|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]Congressional Globe, 39th Congress, 1st Session, 1033 (1866), p. 2766}}The relationship between the Fifth and Fourteenth Amendments was addressed by Justice Field in Wong Wing v. United States (1896).Wong Wing v. United States, {{ussc|163|228|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."Wong Wing, 163 U.S. at 242–243 (Justice Field, concurring in part and dissenting in part).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.In Santa Clara County v. Southern Pacific Railroad (1886), the court reporter included a statement by Chief Justice Morrison Waite in the decision's headnote:{{blockquote|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.BOOK, Johnson, John W., Historic U.S. Court Cases: An Encyclopedia,weblink June 13, 2013, 2001, Routledge, 978-0415937559, 446–447, February 6, 2016,weblink live, 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.ENCYCLOPEDIA, 2003, Corporations, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues: 1789–2002, ABC-CLIO, John R., Vile, 116, Between 1890 and 1910, Fourteenth Amendment cases involving corporations vastly outnumbered those involving the rights of blacks, 288 to 19.BOOK, Collier Books, Logan, Rayford Whittingham, The betrayal of the Negro, from Rutherford B. Hayes to Woodrow Wilson,weblink registration, New York, 1965, 100, 9780306807589, In the decades following the adoption of the Fourteenth Amendment, the Supreme Court overturned laws barring blacks from juries (Strauder v. West Virginia, 1880)Strauder v. West Virginia, {{ussc|100|303|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),Plessy v. Ferguson, {{ussc|163|537|1896}}. the Supreme Court held that the states could impose racial segregation so long as they provided similar facilities—the formation of the "separate but equal" doctrine.WEB,weblink Plessy/Ferguson plaque dedicated, Abrams, Eve, February 12, 2009, WWNO (University New Orleans Public Radio), April 17, 2009, January 29, 2012,weblink" title="web.archive.org/web/20120129224157weblink">weblink live, The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908),Berea College v. Kentucky, {{ussc|211|45|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."WEB,weblink 274 U.S. 200: Buck v. Bell, Holmes, Oliver Wendell Jr., Cornell University Law School Legal Information Institute, June 12, 2013, May 30, 2013,weblink" title="web.archive.org/web/20130530002742weblink">weblink dead, File:Thurgood-marshall-2.jpg|thumb|right|upright=0.9|Thurgood Marshall served as chief counsel in the landmark Fourteenth Amendment decision Brown v. Board of EducationBrown v. Board of EducationThe 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.Brown v. Board of Education, {{ussc|347|483|1954}}. 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.BOOK, Patterson, James, Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy (Pivotal Moments in American History), Oxford University Press, 2002, 978-0195156324, registration,weblink This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation.MAGAZINE,weblink Forced Busing and White Flight, September 25, 1978, Time (magazine), Time, June 17, 2009, September 1, 2009,weblink" title="web.archive.org/web/20090901003733weblink">weblink dead, 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.Parents Involved in Community Schools v. Seattle School District No. 1, {{ussc|551|701|2007}}.NEWS,weblink Justices Limit the Use of Race in School Plans for Integration, Greenhouse, Linda, June 29, 2007, The New York Times, June 30, 2013, February 2, 2017,weblink" title="web.archive.org/web/20170202040557weblink">weblink live, 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.WEB, Plyler v. Doe,weblink The Oyez Project at IIT Chicago-Kent College of Law, November 23, 2013, January 14, 2021,weblink live, 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.Hernandez v. Texas, {{ussc|347|475|1954}}. 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);United States v. Virginia, {{ussc|518|515|1996}}. Levy v. Louisiana (1968)Levy v. Louisiana, {{ussc|361|68|1968}}.).BOOK, Gerstmann, Evan, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection, University of Chicago Press, 1999, 978-0226288604,weblink The Supreme Court ruled in Regents of the University of California v. Bakke (1978)Regents of the University of California v. Bakke, {{ussc|438|265|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.BOOK,weblinkweblink dead, February 6, 2016, Regents of the University of California v. Bakke 1978, Daniel E. Brannen, Richard Hanes, 2001, Supreme Court Drama: Cases that Changed America, June 27, 2013, In Gratz v. Bollinger (2003)Gratz v. Bollinger, {{ussc|539|244|2003}}. and Grutter v. Bollinger (2003),Grutter v. Bollinger, {{ussc|539|306|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.WEB,weblink Gratz/Grutter and Beyond: the Diversity Leadership Challenge, Alger, Jonathan, October 11, 2003, University of Michigan, June 30, 2013, dead,weblink" title="web.archive.org/web/20110813090527weblink">weblink August 13, 2011, 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.JOURNAL,weblinkweblink dead, February 6, 2016, Race-Conscious Admissions Programs: Where Do Universities Go From Gratz and Grutter?, Eckes, Susan B., January 1, 2004, Journal of Law and Education, June 27, 2013, 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.Fisher v. University of Texas, {{ussc|570|297|2013}}.WEB,weblink Finally! The Fisher decision in Plain English, Howe, Amy, June 24, 2013, SCOTUSblog, June 30, 2013, June 29, 2013,weblink" title="web.archive.org/web/20130629185348weblink">weblink live, 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.Schuette v. Coalition to Defend Affirmative Action, {{ussc|572|291|2014}}.WEB,weblink Opinion analysis: Affirmative action – up to the voters, Denniston, Lyle, April 22, 2014, SCOTUSblog, April 22, 2014, January 14, 2021,weblink live, Reed v. Reed (1971),Reed v. Reed, {{ussc|404|71|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),Craig v. Boren, {{ussc|429|190|1976}}. the Court ruled that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review.ENCYCLOPEDIA,weblinkweblink dead, February 6, 2016, Craig v. Boren, 429 U.S. 190 (1976), Karst, Kenneth L., January 1, 2000, Encyclopedia of the American Constitution, June 16, 2013, Reed and Craig later served as precedents to strike down a number of state laws discriminating by gender.BOOK,weblinkweblink dead, February 6, 2016, Reed v. Reed 1971, January 1, 2001, Supreme Court Drama: Cases that Changed America, June 12, 2013, Since Wesberry v. Sanders (1964)Wesberry v. Sanders, {{ussc|376|1|1964}}. and Reynolds v. Sims (1964),Reynolds v. Sims, {{ussc|377|533|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".BOOK, Epstein, Lee, Walker, Thomas G., Constitutional Law for a Changing America: Rights, Liberties, and Justice, 6th, CQ Press, 2007, Washington, D.C., 775, Wesberry and Reynolds made it clear that the Constitution demanded population-based representational units for the U.S. House of Representatives and both houses of state legislatures., 978-0871876133, The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993),Shaw v. Reno, {{ussc|509|630|1993}}. the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic under-representation in the state's congressional delegations.JOURNAL, Aleinikoff, T. Alexander, Issacharoff, Samuel, 1993, Race and Redistricting: Drawing Constitutional Lines after Shaw v. Reno, Michigan Law Review, 92, 10.2307/1289796, 3, 1289796, 588–651,weblink December 9, 2019, January 14, 2021,weblink live, The Equal Protection Clause served as the basis for the decision in Bush v. Gore (2000),Bush v. Gore, {{ussc|531|98|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.ENCYCLOPEDIA,weblink Bush v. Gore, Encyclopædia Britannica, June 12, 2013, January 14, 2021,weblink live, In League of United Latin American Citizens v. Perry (2006),League of United Latin American Citizens v. Perry, {{ussc|548|399|2006}}. the Court ruled that House Majority Leader Tom DeLay's Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause.JOURNAL,weblinkweblink dead, February 6, 2016, Fred Gray: life, legacy, lessons, Daniels, Gilda R., March 22, 2012, Faulkner Law Review, June 12, 2013,State actor doctrineBefore United States v. Cruikshank, 92 U.S. 542 (1876) was decided by United States Supreme Court, the case was decided as a circuit case (Federal Cases No. 14897). Presiding of this circuit case was judge Joseph P. Bradley who wrote at page 710 of Federal Cases No. 14897 regarding the Fourteenth Amendment to the United States Constitution:BOOK, United States of America Congressiona Record – Congressional Record: Proceedings and Debates of the 88th Congress Second Session, Volume 110, Part 5, March 19, 1964 to April 6, 1964 (Pages 5655 to 7044), here page 5943, 1964, United States Congress,weblink April 14, 2020,weblink April 14, 2020, {{Blockquote|text=It is a guarantee of protection against the acts of the state government itself. It is a guarantee against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guarantee against the commission of individual offenses, and the power of Congress, whether express or implied, to legislate for the enforcement of such a guarantee does not extend to the passage of laws for the suppression of crime within the states. The enforcement of the guarantee does not require or authorize Congress to perform 'the duty that the guarantee itself supposes it to be the duty of the state to perform, and which it requires the state to perform'.}}The above quote was quoted by United Supreme Court in United States v. Harris, 106 U.S. 629 (1883) and supplemented by a quote from the majority opinion in United States v. Cruikshank, 92 U.S. 542 (1876) as written by Chief Justice Morrison Waite:WEB, United States v. Harris, 106 U.S. 629 (1883),weblink US Supreme Court Center, April 14, 2020, December 22, 2020,weblink live, WEB, United States v. Cruikshank, 92 U.S. 542 (1875),weblink US Supreme Court Center, April 14, 2020, January 14, 2021,weblink live, {{Blockquote|text=The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws, but it adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the National Government is limited to the enforcement of this guaranty.}}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.WEB, Dunn, Christopher, Column: Applying the Constitution to Private Actors (New York Law Journal),weblink New York Civil Liberties Union (NYCLU) – American Civil Liberties Union of New York State, November 23, 2013, April 28, 2009,weblink February 29, 2020, Regarding the Fourteenth Amendment, the Supreme Court ruled in Shelley v. Kraemer (1948):Shelley v. Kraemer, {{ussc|334|1|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),Ex Parte Virginia, {{ussc|100|339|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. This must be so, or the constitutional prohibition has no meaning. [...] But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured."WEB, Ex Parte Virginia, 100 U.S. 339 (1879), at 347,weblink Justia US Supreme Court Center, March 2, 2023, Jackson v. Metropolitan Edison Co, {{ussc|419|345|1974}}.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."Burton v. Wilmington Parking Authority, {{ussc|365|715|1961}}.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."Flagg Bros., Inc. v. Brooks, {{ussc|436|149|1978}}. "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,"{{refn|group=lower-alpha|Jackson v. Metropolitan Edison Co., {{ussc|419|345|1974|pin=350}}; Blum v. Yaretsky, {{ussc|457|991|1982|pin=1004}}. Cf. Moose Lodge No. 107 v. Irvis, {{ussc|407|163|1972}}.}} 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."{{refn|group=lower-alpha|Yaretsky, 457 U.S., at 1004; Flagg Bros., 436 U.S., at 166; Metropolitan Edison Co., 419 U.S., at 357.}}Section 2: Apportionment of RepresentativesSection 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.}}{{anchor|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 such states continued to deny freed slaves the right to vote.JOURNAL, Arthur Earl, Bonfield,weblink The Right to Vote and Judicial Enforcement of Section Two of the Fourteenth Amendment, Cornell Law Review, 46, 1, 1960, December 18, 2016, January 14, 2021,weblink live, Two solutions were considered:
EnforcementThe 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 {{blockquote|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.WEB,weblink "An Act for the Apportionment of Representatives to Congress among the States according to the ninth Census," Forty-Second Congress, Sess. ii, Ch. xi, section 6. February 2, 1872, December 21, 2016, January 14, 2021, live,weblink }} A nearly identical provision remains in federal law to this day.WEB,weblink 2 U.S. Code § 6 – Reduction of representation, LII / Legal Information Institute, December 21, 2016, January 14, 2021,weblink live, 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.ENCYCLOPEDIA,weblinkweblink" title="web.archive.org/web/20140714223753weblink">weblink dead, July 14, 2014, Fourteenth Amendment, Friedman, Walter, January 1, 2006, Encyclopedia of African-American Culture and History, June 12, 2013, In the Fourth Circuit case of Saunders v Wilkins (1945),WEB,weblink Casetext, casetext.com, December 21, 2016, January 14, 2021,weblink live, 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 on voting rightsSome have argued that Section 2 was implicitly repealed by the Fifteenth Amendment,JOURNAL, Chin, Gabriel J., 2004, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth?, Georgetown Law Journal, 92, 259, but the Supreme Court acknowledged Section{{nbsp}}2 in later decisions.In Minor v. Happersett (1875), the Supreme Court cited Section{{nbsp}}2 as supporting its conclusion that the right to vote was not among the "privileges and immunities of citizenship" protected by Section 1.{{blockquote|Why this if it was not in the power of the legislature to deny the right of suffrage to some male inhabitants? And if suffrage was necessarily one of the absolute rights of citizenship, why confine the operation of the limitation to male inhabitants? Women and children are, as we have seen, "persons." They are counted in the enumeration upon which the apportionment is to be made, but if they were necessarily voters because of their citizenship unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly, no such form of words would have been elected to express the idea here indicated if suffrage was the absolute right of all citizens.}} Women would not achieve equal voting rights throughout the United States until the adoption of Nineteenth Amendment in 1920.In Richardson v. Ramirez (1974), the Court cited Section{{nbsp}}2 in holding that Section 1's Equal Protection Clause does not prohibit states disenfranchising felons.Richardson v. Ramirez, {{ussc|418|24|1974}}.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{{nbsp}}2 "was not designed to permit the purposeful racial discrimination [...] which otherwise violates [Section]{{nbsp}}1 of the Fourteenth Amendment."Hunter v. Underwood, {{ussc|471|222|1985}}.CriticismAbolitionist leaders criticized the amendment's failure to specifically prohibit the states from denying people the right to vote on the basis of race.{{sfn|Foner|1988|p=255}} In 1937, Senator William Borah proposed a Substitute Constitutional Amendment,NEWS, AP, February 26, 1937, Enemies of F.D.R. Plan Welcome Borah Move,weblink February 10, 2024, The Butte Daily Post, 9, that included eliminating provisions that penalized those that supported the Confederacy.NEWS, United Press, February 26, 1937, Borah Proposes Substitute Plan for Court Change,weblink February 10, 2024, Philadelphia Inquirer, 6, 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{{nbsp}}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.{{sfn|Foner|1988|pp=255–256}}Section 3: Disqualification from office for insurrection or rebellion{{anchor|Participants in rebellion}}Soon after losing the Civil War in 1865, states that had been part of the Confederacy began to send "unrepentant" former Confederates (such as the Confederacy's former vice president, Alexander H. Stephens) to Washington as senators and representatives. Congress refused to seat them and drafted Section 3 to perpetuate, as a constitutional imperative, that any who violate their oath to the Constitution are to be barred from public office.NEWS, Parks, MaryAlice, Democrats cite rarely used part of 14th Amendment in new impeachment article, January 12, 2021,weblink February 15, 2021, ABC News, en, Section 3 disqualifies from federal or state office anyone who, having taken an oath as a public official to support the Constitution, subsequently has "engaged in insurrection or rebellion" against the United States or given "aid or comfort" to its enemies.NEWS, Rosenwald, Michael S., January 12, 2021, There's an alternative to impeachment or 25th Amendment for Trump, historians say,weblink The Washington Post, January 18, 2021, NEWS, Wolf, Zachary B., What's the 14th Amendment and how does it work?, January 12, 2021,weblink February 15, 2021, CNN, Southerners strongly opposed it, arguing it would hurt reunification of the country.{{r|3WaPo}}Section 3 does not specify how it is to be invoked, but Section 5 says Congress has enforcement power. Accordingly, Congress enforced Section 3 by enacting Sections 14 and 15 of the Enforcement Act of 1870, the pertinent portion of which was repealed in 1948; there is still a current federal statute ({{USC|18|2383}}) that was initially part of the Confiscation Act of 1862 (and revised in 1948), disqualifying insurrectionists from any federal office.{{refn|group=lower-alpha|Current text of 18 U.S. Code § 2383 - Rebellion or insurrection: "Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."WEB, Cornell Law School, Legal Information Institute, U.S. Code Title 18, Part I, Chapter 115 § 2383 - Rebellion or insurrection,weblink www.law.cornell.edu, 9 January 2024, }}Lynch, Myles. "Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment", 30 Wm. & Mary Bill Rts. J. 153, 206 n. 365 (2021). Moreover, each house of Congress can expel or (Article One of the United States Constitution#Section 5: Procedure|exclude) members for insurrection or other reasons, although it is uncertain whether more votes may be required to expel than to exclude.Vermeule, Adrian. "The Constitutional Law of Congressional Procedure", 71 U. CHI. L. REV. 361, 391–97 (2004).MAGAZINE, Weiss, Debra Cassens, Could the 14th Amendment be used to disqualify Trump from office?, January 12, 2021,weblink February 15, 2021, ABA Journal, en, NEWS,weblink Reuters, Explainer: Impeachment or the 14th Amendment – Can Trump be barred from future office?, Jan, Wolfe, January 14, 2021, A further way that Congress can enforce Section 3 is via impeachment, and even prior to the adoption of the Fourteenth Amendment Congress impeached and disqualified federal judge West Humphreys for insurrection.Byrd, Robert. The Senate, 1789-1989: Addresses on the history of the United States Senate, Volume 2, p. 80 (1988). Furthermore, in Trump v. Anderson (2024), the Supreme Court held that only Congress can promulgate rules for disqualification under this section.After the amendment's adoption in 1868, disqualification was seldom enforced in the South.{{r|3ABC|3WaPo}}At the urging of President Ulysses S. Grant, in 1872 Congress passed the Amnesty Act, which removed the disqualification from all but the most senior Confederates.{{r|3ABA}}In 1898, as a "gesture of national unity"{{r|3WaPo}} during the Spanish–American War, Congress passed another law broadening the amnesty.Act of June 6, 1898, ch. 389, 30 Stat. 432 {{Webarchive|url=https://web.archive.org/web/20210114215236weblink|date=January 14, 2021}}WEB,weblink Sections 3 and 4: Disqualification and Public Debt, Caselaw.lp.findlaw.com, June 5, 1933, August 5, 2011,weblink" title="web.archive.org/web/20110805165052weblink">weblink live, August 1, 2010, Congress posthumously lifted the disqualification from Confederate general Robert E. Lee in 1975,JOURNAL, 2005, Pieces of History: General Robert E. Lee's Parole and Citizenship, Prologue Magazine, 37, 1,weblink August 28, 2017, January 14, 2021, live,weblink and Confederate president Jefferson Davis in 1978.{{r|3WaPo|3CNN}}WEB,weblink History Buzz: October 16, 2006: This Week in History, Goodman, Bonnie K., 2006, History News Network, June 18, 2009, dead,weblink" title="web.archive.org/web/20071019004128weblink">weblink October 19, 2007, These waivers do not bar Section 3 from being used today.{{r|3ABA}}Between Reconstruction and 2021, Section 3 was invoked only once: it was used to block Socialist Party of America member Victor L. Berger of Wisconsin{{mdash}}convicted of violating the Espionage Act for opposing US entry into World War I{{mdash}}from assuming his seat in the House of Representatives in 1919 and 1920.{{r|3WaPo|3Reuters}}{{citation|title=Chapter 157: The Oath As Related To Qualifications|work=Cannon's Precedents of the U.S. House of Representatives|volume=6|date=January 1, 1936|url=http://www.gpo.gov/fdsys/pkg/GPO-HPREC-CANNONS-V6/html/GPO-HPREC-CANNONS-V6-10.htm|access-date=April 9, 2013|archive-date=June 20, 2013|archive-url=https://web.archive.org/web/20130620130834weblink|url-status=live}}Berger's conviction was overturned by the Supreme Court in Berger v. United States (1921), after which he was elected to three successive terms in the 1920s; he was seated for all three terms.WEB,weblink Victor L. Berger {{!, Encyclopedia of Milwaukee|website=emke.uwm.edu|language=en-US|access-date=February 5, 2018|archive-date=January 14, 2021|archive-url=https://web.archive.org/web/20210114215311weblink|url-status=live}}January 6 United States Capitol attackOn January 10, 2021, Nancy Pelosi, the Speaker of the House, formally requested Representatives' input as to whether to pursue Section 3 disqualification of outgoing President Donald Trump because of his role in the January 6 United States Capitol attack.{{r|3CNN|3ABC}}On January 11, 2021, Representative Cori Bush (D-MO) and 47 co-sponsors introduced a resolution calling for expulsion, under Section 3, of members of Congress who voted against certifying the results of the 2020 US presidential election or incited the January 6 riot. Those named in the resolution included Republican Representatives Mo Brooks of Alabama and Louie Gohmert of Texas, who took part in the rally that preceded the riot, and Republican Senators Josh Hawley of Missouri and Ted Cruz of Texas, who objected to counting electoral votes to certify the 2020 presidential election result.{{r|3CNN|3ABC}}In January 2022, after Representative Madison Cawthorn (R-NC) declared his intent to run for re-election, a group of North Carolina voters from Cawthorn's district filed suit, alleging that a speech he gave immediately prior to the Capitol attack incited it, and that therefore Section 3 disqualified him from holding federal office. A federal judge entered a preliminary injunction in favor of Cawthorn, citing the Amnesty Act of 1872;WEB, Axelrod, Tal, 2022-03-24, Federal judge halts legal challenge to Madison Cawthorn's candidacy,weblink 2022-03-21, The Hill (newspaper), The Hill, however, on May 24, 2022, an appeals court ruled that this law applied only to people who committed "constitutionally wrongful acts" before 1872.NEWS, Weiner, Rachel, 24 May 2022, Insurrectionists can be barred from office, appeals court says, Washington Post,weblink 25 May 2022, A similar challenge, which a federal court declined to block, was filed in March 2022 against Marjorie Taylor Greene (R-GA)WEB, Brumback, Kate, 2022-03-24, Voters challenge Greene's eligibility to run for reelection,weblink 2023-09-25, AP News, en, and heard in April 2022 in Atlanta.WEB, Brumback, Kate, 2022-04-22, Marjorie Taylor Greene's candidacy challenged at hearing,weblink 2022-04-22, Associated Press, en, A Georgia administrative law judge ruled that Greene was eligible to appear on the 2022 Republican primary ballot in Georgia, and Secretary of State Brad Raffensperger and the Fulton County Superior Court affirmed this. Though Greene sued to strike down the state law as unconstitutional, a federal court said her complaint was moot, since this law ultimately did not deny her eligibility for re-election.WEB, Shapero, Julia, 2022-11-03, Court ends Marjorie Taylor Greene's legal fight over 'insurrection' clause,weblink 2023-09-25, The Hill, en-US, Couy Griffin, an Otero County, New Mexico commissioner, was barred from holding public office for life in September 2022 by District Court Judge Francis Mathew, who found his participation as the leader of the Cowboys for Trump group during the attack on the Capitol was an act of insurrection under Section 3.NEWS, Lopez, Ashley, 2022-09-06, A New Mexico judge cites insurrection in barring a county commissioner from office, en, NPR,weblink 2022-09-06, WEB, Miru, 2022-09-06, Judge removes Griffin from office for engaging in the January 6 insurrection,weblink 2022-09-06, CREW {{!, Citizens for Responsibility and Ethics in Washington |language=en-US}} After an appeal process, the Supreme Court of the United States upheld his removal from public office and being disqualified for life from ever holding public office again.WEB, Morgan, Lee, Nicholas, Riccardi, Mark, Sherman,weblink Supreme Court rejects appeal by former New Mexico county commissioner banned for Jan. 6 insurrection, Associated Press, March 18, 2024,weblink March 20, 2024, NEWS, Morgan Lee and Nicholas Ricardi, Supreme Court opens new frontier for insurrection claims that could target state and local officials,weblink March 20, 2024, Associated Press, Associated Press News, March 19, 2024,weblink March 20, 2024, On January 2, 2024, a lawsuit seeking to bar Scott Perry (R-PA) from the 2024 ballot via Section 3 was filed.WEB, Enright, Matt, 2024-01-02, Lawsuit seeks to bar Rep. Scott Perry from 2024 ballot using 14th Amendment,weblink York Dispatch, 2024-01-03, en, WEB, Levy, Marc, 2024-01-03, Lawsuit aims to keep Pennsylvania congressman off ballot over Constitution’s insurrection clause,weblink 2024-01-03, en, On January 5, 2024, a lawsuit seeking to disqualify Burt Jones from holding office as Lieutenant Governor of Georgia via Section 3 was dismissed.NEWS, Amy, Jeff, 2024-01-06, Judge rejects lawsuit to disqualify Georgia's lieutenant governor for acting as Trump elector,weblink ABC News, 2024-01-07, en,Trump disqualification debate{{anchor| Trump disqualification argument}}{{See also|Trump v. Anderson}}By October 30, 2023, lawsuits seeking to disqualify Trump from the ballot pursuant to Section 3 of the Fourteenth Amendment via state courts had also been filed.NEWS, Nicholas, Riccardi, Associated Press, 2023-10-30, State courts to consider blocking Trump from 2024 ballot under the 'insurrection' clause,weblink 2023-11-18, PBS NewsHour, en-us, Some legal scholars speculated that a court would be required to make a final determination that Trump was disqualified under Section 3.NEWS, Luttig, J. Michael, Wallace, Nicole, August 22, 2023, Fmr. federal judge: Trump, allies committed 'grave crimes' with 2020 election coup plot, MSNBC,weblink live, August 23, 2023,weblink August 23, 2023, NEWS, Luttig, J. Michael, Wallace, Nicole, Judge Luttig: Secretaries Of States Will Decline To Place Trump On The Ballot, Argue He Is Unqualified,weblink August 22, 2023, RealClearPolitics, live,weblink August 23, 2023, August 23, 2023, The United States Supreme Court has never ruled on the meaning or application of the insurrection clause. Legal experts expected at least one of these state cases to be appealed to the U.S. Supreme Court.NEWS, Cohen, Marshall, 2023-11-14, Trump to remain on Michigan ballot after judge rejects another 14th Amendment challenge, en, CNN,weblink 2023-11-18, NEWS, 2023-11-18, Donald Trump to remain on Colorado primary ballot after judge dismisses lawsuit, en-GB, BBC News,weblink 2023-11-18, NEWS, Woodruff, Chase, Colorado Supreme Court hears arguments in Trump 14th Amendment case,weblink 2023-12-06, 2023-12-08, Colorado Newsline, en, On December 19, 2023, in the case Anderson v. Griswold, the Colorado Supreme Court held that Trump is disqualified from holding the office of president under Section 3 of the Fourteenth Amendment.NEWS, Astor, Maggie, Trump Ballot Ruling - Trump Is Disqualified From the 2024 Ballot, Colorado Supreme Court Rules - Former President Donald J. Trump’s campaign said it planned to appeal the decision to the U.S. Supreme Court.,weblink December 19, 2023, The New York Times, live,weblink December 20, 2023, December 19, 2023, WEB, 2023-12-19, Colorado Supreme Court bans Trump from the state's ballot under Constitution's insurrection clause,weblink 2023-12-19, PBS NewsHour, en, Furthermore, the court held it would be a "wrongful act" under the Election Code for the Colorado Secretary of State to list Trump as a candidate on the presidential primary ballot. This decision was stayed until January 4, 2024, in the expectation that Trump would seek certiorari from the United States Supreme Court.WEB, Supreme Court Case No. 23SA300,weblink Colorado Judicial Branch, The Supreme Court of the State of Colorado, 20 December 2023, The Colorado Republican Party appealed the case to the U.S. Supreme Court, and the Colorado Secretary of State announced that Trump will be included on the primary ballot "unless the U.S. Supreme Court declines to take the case or otherwise affirms the Colorado Supreme Court ruling."NEWS, Valencia, Jamel, Colorado Secretary of State to leave Trump on state primary ballot for now, KATU, Portland, Oregon, December 28, 2023,weblink January 1, 2024, WEB, 2023-12-28, Trump ballot ban appealed to US Supreme Court by Colorado Republican Party,weblink 2023-12-28, AP News, en, On December 28, 2023, Maine announced that Trump would not appear on the ballot when the Secretary of State decided that Trump had committed insurrection, although the ruling was stayed for judicial review.NEWS, O'Connell, Oliver, Kilander, Gustaf, Woodward, Alex, Maine removes Trump from 2024 ballot as California declines to act: Maine Secretary of State Shenna Bellows blocked Trump from the ballot over his role in the January 6 Capitol riots, The Independent, December 29, 2023,weblink December 29, 2023,weblink December 29, 2023, dead, en, Trump appealed to Kennebec County Superior Court.WEB, Ohm, Rachel, 2024-01-02, Trump appeals Maine secretary of state's decision to bar him from primary ballot,weblink Portland Press Herald, 2024-01-03, en, January 2, 2024,weblink live, NEWS, Marley, Patrick, 2024-02-02, Trump appeals Maine's decision to ban him from the primary ballot,weblink The Washington Post, 2024-01-03, en, On January 17, the case was remanded back to the Maine Secretary of State for reconsideration after the U.S. Supreme Court rules on the Colorado case.NEWS, Schonfeld, Zach, January 17, 2024, Maine judge defers decision on Trump 14th Amendment question until Supreme Court rules,weblink January 17, 2024, The Hill, en-US, NEWS, Murphy, Michaela, January 17, 2024, Order and Decision (M.R. Civ. P. 80C),weblink January 17, 2024, Maine Judicial Branch, On January 3, 2024, Trump appealed to the US Supreme Court on the Colorado matter.WEB, 2024-01-03, READ: Trump’s appeal to Supreme Court in Colorado 14th Amendment case,weblink 2024-01-04, CNN Politics, en, His attorneys argued that Section 3 of the Fourteenth Amendment should not apply to the presidency because the president is not an Officer of the United States.WEB, Collinson, Stephen, 2024-01-04, Analysis: Trump’s appeals on ballot access raise existential constitutional arguments,weblink 2024-01-04, CNN Politics, en, The Supreme Court announced on January 5, 2024, that it would hear the Colorado case, scheduling oral arguments for February 8.NEWS, Cole, Devan, Supreme Court agrees to decide whether Trump can be barred from holding office,weblink CNN, January 5, 2024, live,weblink Jan 18, 2024, Texas Lieutenant Governor Dan Patrick suggested that President Joe Biden could be removed from the ballot via Section 3 due to his immigration policy having permitted "invasion".NEWS, Lim, Clarissa-Jan, Texas' lieutenant governor floats taking Biden off the state ballot,weblink Dec 20, 2023, MSNBC, February 1, 2024, en, Missouri Secretary of State Jay Ashcroft threatened to take such action in retaliation.NEWS, Timm, Jane C., Terkel, Amanda, Republican secretary of state threatens to kick Biden off the ballot as Trump payback, Jan 5, 2024,weblink NBC News, February 1, 2024, en, Three Republican members of state Houses of Representatives announced intent to parody the Colorado decision via introducing legislation towards removing Biden as an insurrectionist from their states' ballots.NEWS, Gantt, Aleta, December 25, 2023, Georgia is one of five states trying to remove Joe Biden from 2024 ballots,weblink KTOY 104.7, February 1, 2024, en, live,weblink Jan 31, 2024, On January 30, 2024, a challenge that cited Section 3 to argue against inclusion of Biden on the Illinois Democratic primary ballot was dismissed by the Illinois State Board of Elections.NEWS, Vinicky, Amanda, January 30, 2024, Illinois Election Board Votes to Keep Trump, Biden on March Primary Ballot,weblink WTTW News, February 1, 2024, en, live,weblink Jan 31, 2024, On March 4, 2024, the Supreme Court in Trump v. Anderson reversed the Colorado Supreme Court decision, holding that Congress determines eligibility under Section 3 for federal officeholdersNEWS, Mangan, Dan, March 4, 2024, Supreme Court puts Trump back on Colorado Republican primary ballot, CNBC,weblink March 4, 2024, and states may only bar candidates from state office.WEB,weblink Read the Supreme Court ruling keeping Trump on the 2024 presidential ballot, Dan, Cooney, 2024-03-04, 2024-03-04, en-US, Politics, PBS NewsHour, PBS,Section 4: Validity of public debtSection 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.WEB, Annotation 37 – Fourteenth Amendment Sections 3 and 4 Disqualification and Public Debt,weblink FindLaw, October 17, 2013, June 25, 2013,weblink" title="web.archive.org/web/20130625150005weblink">weblink live, In Perry v. United States (1935), the Supreme Court ruled that under Section{{nbsp}}4 voiding a United States bond "went beyond the congressional power".WEB,weblink January 23, 2013,weblink" title="archive.today/20130123014207weblink">weblink dead, Perry v. United States 294 U.S. 330 (1935) at 354, Findlaw, August 1, 2010, The debt-ceiling crises of 2011, 2013, and 2023 raised the question of what the President's authority under Section 4 is.NEWS, Liptak, Adam, The 14th Amendment, the Debt Ceiling and a Way Out,weblink The New York Times, July 30, 2011, In recent weeks, law professors have been trying to puzzle out the meaning and relevance of the provision. Some have joined Mr. Clinton in saying it allows Mr. Obama to ignore the debt ceiling. Others say it applies only to Congress and only to outright default on existing debts. Still others say the President may do what he wants in an emergency, with or without the authority of the 14th Amendment., July 24, 2011, January 14, 2021,weblink live, NEWS, 3 ways Obama could bypass Congress, Jack M., Balkin,weblink CNN, Jack Balkin, October 16, 2013, October 16, 2013,weblink" title="web.archive.org/web/20131016204343weblink">weblink live, NEWS, Sullivan, Andy, Thomsen, Jacqueline, Explainer: Could Biden avert a debt default by using the 14th Amendment?,weblink Reuters, May 2, 2023, NEWS, Wingrove, Josh, Sink, Justin, Biden Not Ready Yet to Invoke 14th Amendment to Avoid US Default,weblink Bloomberg News, May 5, 2023, During the 2011 crisis, former President Bill Clinton said he would invoke the Fourteenth Amendment to raise the debt ceiling if he were still in office, and force a ruling by the Supreme Court.NEWS, Rappeport, Alan, Explaining the U.S. Debt Limit and Why It Became a Bargaining Tool,weblink The New York Times, October 10, 2021, September 27, 2021,
Section 5: Power of enforcement}}The United States Supreme Court stated in the 2024 case Trump v. Anderson: "The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5. This can hardly come as a surprise, given that the substantive provisions of the Amendment “embody significant limitations on state authority.†Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976). Under the Amendment, States cannot abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote (without thereby suffering reduced representation in the House). See Amdt. 14, §§1, 2. On the other hand, the Fourteenth Amendment grants new power to Congress to enforce the provisions of the Amendment against the States."WEB, Trump v. Anderson, 601 U.S. ___ (2024), Per Curiam, at page 7-8,weblink United Statets Supreme Court, March 4, 2024,weblink March 4, 2024, March 4, 2024, The opinion of the Supreme Court in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) stated with a view to the Reconstruction Amendments and about the Fourteenth Amendment's Section{{nbsp}}5 Enforcement Clause in light of said Amendment's Equal Protection Clause:WEB, Slaughterhouse Cases, 83 U.S. 36 (1872), at page 83 U. S. 71,weblink US Supreme Court Center, April 14, 2020, January 14, 2021,weblink live, {{Blockquote|text=In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation.}}Section 5, also known as the Enforcement Clause of the Fourteenth Amendment, enables Congress to pass laws enforcing the amendment's other provisions.JOURNAL,weblinkweblink" title="web.archive.org/web/20061218012449weblink">weblink dead, December 18, 2006, The McCulloch theory of the Fourteenth Amendment: City of Boerne v. Flores and the original understanding of section 5, Engel, Steven A., October 1, 1999, Yale Law Journal, 109, 1, 115–154, 10.2307/797432, 797432, June 12, 2013, JOURNAL, Kovalchick, Anthony, Judicial Usurpation of Legislative Power: Why Congress Must Reassert its Power to Determine What is Appropriate Legislation to Enforce the Fourteenth Amendment, Chapman Law Review, February 15, 2007, 10, 1,weblink July 19, 2013, May 3, 2015,weblink" title="web.archive.org/web/20150503220316weblink">weblink live, In Ex Parte Virginia (1879) the U.S. Supreme Court explained the scope of Congress' §5 power in the following broad terms: "Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power."WEB, Ex Parte Virginia, 100 U.S. 339 (1879), at 346–346.,weblink Justia US Supreme Court Center., September 20, 2021, In the Civil Rights Cases (1883),Civil Rights Cases, {{ussc|109|3|1883}}. the Supreme Court interpreted Section{{nbsp}}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.WEB,weblink FindLaw: U.S. Constitution: Fourteenth Amendment, p. 40, Caselaw.lp.findlaw.com, August 1, 2010, June 25, 2013,weblink" title="web.archive.org/web/20130625153047weblink">weblink live, In Katzenbach v. Morgan (1966),Katzenbach v. Morgan, {{ussc|384|641|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{{nbsp}}5 to enforce the Equal Protection Clause. The Court ruled that Section{{nbsp}}5 enabled Congress to act both remedially and prophylactically to protect the rights guaranteed by the amendment.ENCYCLOPEDIA,weblinkweblink" title="web.archive.org/web/20150924171050weblink">weblink dead, September 24, 2015, Katzenbach v. Morgan 384 U.S. 641 (1966), Eisenberg, Theodore, January 1, 2000, Encyclopedia of the American Constitution, June 12, 2013, However, in City of Boerne v. Flores (1997),City of Boerne v. Flores, {{ussc|521|507|1997}}. the Court narrowed Congress's enforcement power, holding that Congress may not enact legislation under Section{{nbsp}}5 that substantively defines or interprets Fourteenth Amendment rights. The Court ruled that legislation is valid under Section{{nbsp}}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.Flores, 521 U.S., at 520. In Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank (1999) it was observed by the Supreme Court "that for Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct."WEB, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), at 639,weblink Supreme Justia, March 20, 2024,weblink March 20, 2024, June 23, 1999, The United States Supreme Court observed in the 2024 case Trump v. Anderson: "Senator Howard put it at the time the Amendment was framed, Section 5 “casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith.†Cong. Globe, 39th Cong., 1st Sess.,at 2768."WEB, Trump v. Anderson, 601 U.S. ___ (2024), Per Curiam, at page 5,weblink United Statets Supreme Court, March 4, 2024,weblink March 4, 2024, March 4, 2024,Selected Supreme Court cases{{see also|List of United States court cases involving the Fourteenth Amendment|Template:US14thAmendment}}Citizenship{{Div col|colwidth=30em}}
Privileges or immunities{{Div col|colwidth=30em}}
Incorporation{{Div col|colwidth=30em}}
Substantive due process{{Div col|colwidth=30em}}
Equal protection{{Div col|colwidth=30em}}
Felon disenfranchisement
Power of enforcement{{Div col|colwidth=30em}}
AdoptionProposal by Congress{{See also|Presidency of Andrew Johnson}}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.{{sfn|Goldstone|2011|p=22}}Stromberg, "A Plain Folk Perspective" (2002), p. 111. 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.{{sfn|Goldstone|2011|p=22}}BOOK, The Fourteenth Amendment: From Political Principle to Judicial Doctrine, Nelson, William E., 1988, Harvard University Press, 978-0674041424, 47,weblink June 6, 2013, January 14, 2021,weblink live, Stromberg, "A Plain Folk Perspective" (2002), p. 112.In 1866, Congress passed 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.BOOK, Stephen P. Halbrook, Halbrook, Stephen P. Halbrook, Stephen P.,weblink Freedmen, the Fourteenth Amendment, and the right to bear arms, 1866-1876, 1998, Praeger, 978-1-56750-782-9, Westport, Conn., 1–3, 547103303, BOOK, Foner, Eric, Reconstruction, 199–200, 978-0807122341, 1997, LSU Press, Although strongly urged by moderates in Congress to sign the bill, President Andrew 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.{{sfn|Foner|1988|pp=250–251}}BOOK, Castel, Albert E., The Presidency of Andrew Johnson, American Presidency, 1979, The Regents Press of Kansas, Lawrence, 978-0700601905, 70,weblink Three weeks later, Johnson's veto was overridden and the measure became law.BOOK, Castel, Albert E., The Presidency of Andrew Johnson, American Presidency, 1979, The Regents Press of Kansas, Lawrence, 978-0700601905, 71,weblink 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.{{sfn|Goldstone|2011|pp=22–23}}(File:14th Amendment Senate & House votes June, 1866.jpg|thumb|left|Senate and House votes on the Fourteenth Amendment){{anchor|Drafters}}More than seventy proposals for an amendment were drafted.Soifer, "Prohibition of Voluntary Peonage" (2012), p. 1614. In an extensive appendix to his dissenting opinion in Adamson v. California (1947), Justice Hugo Black analyzed and detailed the statements made by "those who framed, advocated, and adopted the Amendment" and thus shed some light on the history of the amendment's adoption.WEB, Adamson v. California, 332 U.S. 46 (1947), dissenting opinion of Justice Hugo Black, Appendix, at page 332 U. S. 92 – Page 332 U. S. 123,weblink Justia US Supreme Court Center, February 17, 2022, June 22, 1947, WEB,weblink FindLaw's United States Supreme Court case and opinions: Adamson v. People of State of California, Findlaw, February 19, 2006, August 9, 2011,weblink" title="web.archive.org/web/20110809182337weblink">weblink live, WEB, Yenor, Scott, February 28, 1866: Congressional Debate on the 14th Amendment,weblink Teaching American History, February 22, 2022, February 22, 2022,weblink February 22, 2022, 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.{{sfn|Foner|1988|p=252}} 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.{{sfn|Foner|1988|p=253}} 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.{{sfn|Foner|1988|p=253}} 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.{{sfn|Foner|1988|p=253}} The House of Representatives passed House Resolution 127, 39th Congress several weeks later and sent it to the Senate for action. The resolution was debated and several amendments to it were proposed. Amendments to Sections 2, 3, and{{nbsp}}4 were adopted on June 8, 1866, and the modified resolution passed by a 33 to 11 vote (5 absent, not voting). The House agreed to the Senate amendments on June 13 by a 138–36 vote (10 not voting). A concurrent resolution requesting the President to transmit the proposal to the governors of the states was passed by both houses of Congress on June 18.BOOK, The Constitution of the United States and Amendments Thereto, 1961, Virginia Commission on Constitutional Government, 44, James J. Kilpatrick, McPherson, Edward LL.D., (Clerk of the House of Representatives of the United States) "A Handbook of Politics for 1868", Part I – Political Manual for 1866, VI – Votes on Proposed Constitutional Amendments. Washington City: Philp & Solomons. 1868, p. 102The 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.Carter, Dan. When the War Was Over: The Failure of Self-Reconstruction in the South, 1865–1867, pp. 242–243 (LSU Press 1985). 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."Graber, "Subtraction by Addition?" (2012), pp. 1501–1502. Abolitionist Wendell Phillips called it a "fatal and total surrender". This point would later be addressed by the Fifteenth Amendment.Ratification by the statesFile:14th amendment ratification.svg|thumb|upright=1.8|right|{{Legend|#0050ff|Ratified amendment pre-certification, 1866–1868}}{{Legend|#2896aa|Ratified amendment pre-certification after first rejecting it, 1868}}{{Legend|#d500ff|Ratified amendment post-certification after first rejecting it, 1869–1976}}{{legend|#00ff74|Ratified amendment post-certification, 1959}}{{legend|#ffe680|Ratified amendment, withdrew ratification (rescission), then re-ratified. Oregon rescinded ratification post-certification and was included in the official count}}{{legend|#b8b8b8|Territories of the United StatesTerritories of the United States(File:Letter of Transmittal of 14th Amemdment to the Several States.jpg|thumb|right|400px|Form of the Letter of Transmittal of the Fourteenth Amendment to the several states for its ratification)On June 16, 1866, Secretary of State William Seward transmitted the Fourteenth Amendment to the governors of the several states for its ratification. 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.WEB,weblink The Civil War And Reconstruction, January 8, 2016, January 14, 2021,weblink live, 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."An Act to provide for the more efficient Government of the Rebel States, enacted March 2, 1867, {{USStat|14|428}}, 429The first 28 states to ratify the Fourteenth Amendment were:WEB,weblink Amendment XIV, US Government Printing Office, June 23, 2013, February 2, 2014,weblink" title="web.archive.org/web/20140202115456weblink">weblink live,
| Georgia (U.S. state)>Georgia: July 21, 1868 (after rejection November 9, 1866)}}On July 27, Secretary Seward received the formal ratification from Georgia.BOOK, Library of Congress, A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774–1875, 708,weblink January 14, 2021, January 14, 2021,weblink live, The following day, July 28, Secretary Seward issued his official proclamation certifying the adoption of the Fourteenth 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.BOOK, Library of Congress, A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774–1875, 711,weblink January 14, 2021, January 14, 2021,weblink live, Ultimately, regardless of the legal status of New Jersey's and Ohio's rescission, the amendment would have passed at the same time because of Alabama and Georgia's ratifications.The inclusion of Ohio and New Jersey has led some to question the validity of the 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. On October 16, 1868, three months after the amendment was ratified and part of the Constitution, Oregon rescinded its ratification bringing the number of states that had the amendment actively ratified to 27 (for nearly a year), but this had no actual impact on the US Constitution or the 14th Amendment's standing.The Fourteenth Amendment was subsequently ratified:{{ordered list|start=31|Virginia: October 8, 1869 (after rejection January 9, 1867)|Mississippi: January 17, 1870|Texas: February 18, 1870 (after rejection October 27, 1866)|Delaware: February 12, 1901 (after rejection February 8, 1867) | Maryland: April 4, 1959AMENDMENT OF 1868 RATIFIED BY MARYLAND | DATE=APRIL 5, 1959 | ID={{PROQUEST, 114922297, }} (after rejection March 23, 1867) | California: May 6, 1959COTTRELL | TITLE=STEVE COTTRELL: IT TOOK 92 YEARS FOR CALIFORNIA TO RATIFY THE 15TH AMENDMENT | ACCESS-DATE=19 NOVEMBER 2023 | DATE=26 JUNE 2020, en, |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.See alsoNotes{{notelist}}References{{reflist}}Bibliography
Works cited in Trump disqualification debate subsection
Further reading
* See also: Symposium: the Maryland Constitutional Law Schmooze special issue of the Maryland Law Review.
* Response to McConnell: JOURNAL, Klarman, Michael J., Michael Klarman, Response: Brown, originalism, and constitutional theory: a response to Professor Mcconnell, Virginia Law Review, 81, 7, 1881–1936, October 1995, 10.2307/1073643, 1073643,
* Response to Klarman: JOURNAL, McConnell, Michael W., Michael W. McConnell, Reply: The originalist justification for Brown: a reply to Professor Klarman, Virginia Law Review, 81, 7, 1937–1955, October 1995, 10.2307/1073644, 1073644,
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