Here’s what happened. On January 31, 1865, Congress passed the 13th Amendment. It read as follows: “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.” It was ratified on December 6, 1865.
The 13th Amendment abolished slavery, but it did not grant former slaves any political or social privileges. In response to the Emancipation Proclamation and the 13th Amendment, many Southern states enacted laws, called “Black Codes,” designed to deny African Americans certain rights and privileges enjoyed by white citizens.
Enter the 14th Amendment, ratified on July 9, 1868. The Privileges and Immunities Clause says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The citizenship clause says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Does the past inform the present? Some events more than others, and in 21st-century America, perhaps the 14th Amendment most of all. Although the 14th Amendment was narrowly focused on protecting the rights of former slaves, it has continued to play a major role in law and politics to this day.
The 14th Amendment held that state laws could not impede a person’s federal rights. In a country formerly reliant on states’ rights, the non-abridgement clause made federal law superior to—and determinative of—state law. The 14th Amendment set up the United States Supreme Court cases for a generation. You don’t want gun control? Interpret the 14th Amendment. In McDonald v. Chicago (2010), a Chicago ban on handguns was overturned by the Supreme Court. Justice Clarence Thomas cited the 14th Amendment and the non-abridgement clause in his opinion supporting the ruling.
You don’t want legal abortion? Knock down the “implied right” of privacy granted in the 14th Amendment. In 1973 in Roe v. Wade, the Supreme Court decided that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right.
The current Supreme Court disagreed. In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overturned Roe v. Wade (1973). Writing for the majority in Dobbs, Justice Samuel Alito said that the only legitimate unenumerated rights—that is, rights not explicitly stated in the Constitution—are those “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Abortion, the majority held, is not such a right.
The justices were aware and stated that, after Dobbs, reproductive rights would be decided state by state. Returning to the pre-14th Amendment world of states’ rights, a patchwork of laws emerged. Abortion is a state constitutional right in 10 states, a right protected by legislation in other states, and illegal in the majority of states.
In a stunning attempt to limit immigration, Trump challenged the Constitution, which stated, “All person born or naturalized in the United States … are citizens of the United States.” Trump believed he could end birthright citizenship with an executive order.
14th Amendment: 1; Trump: 0.
The 14th Amendment to the United States Constitution deals with several aspects of U.S. citizenship and the rights of citizens. Folks claim the 2010 Supreme Court decision of Citizens United used the 14th Amendment to identify corporations as persons with the rights granted thereto. In fact, the Citizens United majority opinion is one that does not reference the 14th Amendment. It references political speech rights as not dependent on the identity of the speaker, and could be an association of people. Most important, donations are identified as political speech.
The 14th Amendment was sighted, however, as a possible solution to the fight in the House of Representatives over raising the debt ceiling. The 14th requires debts be paid. The proposition was never tested when the problem was resolved.
We seem to abuse the First Amendment, misunderstand the Second Amendment, and forget about the intervening until the 18th (Prohibition) and the 19th (women’s right to vote). If we study just one, pick the 14th.
Side Bar: The 14th Amendment contains five sections. How many can we attach to a modern court case that was decided based upon it?
Section One guarantees all rights and privileges of citizenship to any and all persons born or naturalized in the United States. It also guarantees all Americans their constitutional rights and prohibits the states from passing laws limiting those rights. Lastly, it ensures that no citizen’s right to “life, liberty, or property” will be denied without due process of law.
Section Two specifies that the process of apportionment used to fairly distribute seats in the U.S. House of Representatives among the states must be based on the whole population, including formerly enslaved African Americans. Prior to this, African Americans had been under-counted when apportioning representation. The section also guaranteed the right to vote to all male citizens aged 21 years or older.
Section Three forbids anyone who participates or has participated in “insurrection or rebellion” against the United States from holding any elected or appointed federal office. The section was intended to prevent former Confederate military officers and politicians from holding federal offices. However, they were still permitted to hold other positions of power, such as law enforcement, and retained their Second Amendment rights.
Section Four addresses the federal debt by confirming that neither the United States nor any state could be forced to pay for lost enslaved Black Americans or debts that had been incurred by the Confederacy as a result of their participation in the Civil War.
Section Five, also known as the Enforcement Clause, grants Congress the power to pass “appropriate legislation” as necessary to enforce all of the amendment’s other clauses and provisions.
