Ratifieed by the required three-fourths of states on July 9, 1868 Reprinted on GPO Access: Constitution of the United States (Web site)
Ex-slaves are granted citizenship and afforded civil liberties
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.…"
The rise of "Black Codes"—discriminatory local laws subjecting African Americans to harsher penalties or forced labor for certain crimes, among other restrictions—prompted the U.S. Congress to pass the Civil Rights Act of 1866 (see Chapter 8). The bill stated that all African Americans born in the United States were citizens entitled to the "full and equal benefit of all laws" enjoyed by whites. It also outlawed providing "different punishment, pains, or penalties" for ex-slaves than for whites.
Congress gathered the two-thirds majority necessary to pass the bill over the veto of President Andrew Johnson (1808–1875; served 1865–69). But the Northerners still had two problems. U.S. representative Thaddeus Stevens (1792–1868) of Pennsylvania, a leader of the antislavery Radical Republicans, feared the Civil Rights Act could be overturned by a future Congress less sympathetic to African Americans' rights. Congress also needed to establish the ground rules for Reconstruction, the process of bringing the Southern states back into the Union after the American Civil War (1861–65).
The Fourteenth Amendment to the U.S. Constitution, introduced April 30, 1866, tried to answer both concerns. The first section echoed the key points of the Civil Rights Act: The states could not "deprive any person of life, liberty, or property, without due process of law" or deny any person "equal protection of the laws." Placing those rights in the Constitution would make it much harder for a future Congress to take them away, as it would require passing a new amendment, a process that needs the approval of at least two-thirds of the members of Congress and at least three-fourths of the states.
The second section of the Fourteenth Amendment offered a compromise in the heated debate over African American suffrage (voting rights). The Radical Republicans had pushed for a measure granting African American men the right to vote, arguing that ex-slaves would not be truly free without a voice in the political process. But some moderate congressmen (many of them facing reelection in 1866) feared the idea would be unpopular even in the North, where many whites who opposed slavery still viewed African Americans as inferior. White voters in Connecticut, Minnesota, and Wisconsin had defeated proposals in 1865 to give African Americans the ballot in those states. There was also a legal question of whether the decision on African American suffrage belonged to the federal government or the individual states.
The amendment offered a compromise: Any state that denied some men the right to vote would not be able to count those men in the congressional districts, which are defined by population. Moderates hoped that measure would give Southern states an incentive to give African American men the ballot, as the South would lose up to one-third of its congressional seats if it failed to do so. But leading abolitionists (opponents of slavery) such as Frederick Douglass (1817–1895), who was African American, criticized the compromise. "To say that I am a citizen to pay taxes … obey the laws, support the government, and fight the battles of the country, but, in all that respects voting and representation [in Congress], I am but as so much inert [powerless] matter, is to insult my manhood," said Douglass, as quoted in The Struggle for Equality.
The third section of the Fourteenth Amendment also reflected a compromise, this time over the political rights of ex-Confederates. To prevent the former "rebels" from having a hand in building the new Southern state governments, the Radical Republicans wanted to bar all former supporters of the Confederacy from voting until 1870. But the moderates thought the measure was too extreme. After some debate, Congress changed the section to allow ex-Confederates to vote, but to exclude some of the higher-ranking officials from elected office. Specifically, anyone who had taken an oath before the war to support the Constitution (as most elected officials do), then participated in the "rebellion" against the Union, was not allowed to hold elected office again.
The fourth section rejected any responsibility for the debt accumulated by the Confederacy during the war. Finally, the fifth section gave Congress the power to enforce these measures by passing laws.
In most points, the Fourteenth Amendment reflected a compromise between the ideals of the abolitionists and the reality of what most whites were willing to accept. As quoted in Reconstruction: America's Unfinished Revolution, U.S. senator James W. Grimes (1816–1872) of Iowa said, "It is not exactly what any of us wanted, but we were each compelled to surrender some of our individual preferences in order to secure anything." Some abolitionists supported the amendment, hoping it would lay the groundwork for a future amendment granting African Americans the right to vote. Others opposed it for not going far enough. They particularly opposed the idea of allowing Southern states back into the Union if they approved the Fourteenth Amendment. They feared this would bring an end to Reconstruction without placing the ballot in the hands of African American men.
Congress was split along party lines—Republicans in favor of the amendment, Democrats against it—for months of passionate debate. U.S. representative Andrew J. Rogers (1828–1900), a Democrat from New Jersey, said the amendment was an attempt to legitimize (or legally justify) the Civil Rights Act, which he believed to be unconstitutional, according to a speech reprinted in Reconstruction: Opposing Viewpoints. The Civil Rights Act and the amendment both stepped on states' rights to determine how African Americans should be treated, Rogers said.
Take the State of Kentucky, for instance. According to her laws, if a negro commits a rape upon a white woman he is punished by death. If a white man commits that offense, the punishment is imprisonment. Now, according to this proposed amendment, the Congress of the United States is to have the right to repeal [undo] the law of Kentucky and compel that State to inflict the same punishment upon a white man for rape as upon a black man.
But U.S. representative John A. Bingham (1815–1900), an Ohio Republican who helped draft the amendment, said the measure simply allowed Congress to enforce the rights already outlined in the Constitution. Specifically, the Fifth Amendment states no person shall be "deprived of life, liberty, or property without due process of the law." The Fourteenth Amendment would allow the federal government to step in if one of the states so deprived its citizens, Bingham argued in a speech reprinted in Reconstruction: Opposing Viewpoints.
The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow-men. Why should it not be so?
Stevens, one of the leading Radical Republicans in the House, summed up the amendment this way: "Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford 'equal' protection to the black man." The House of Representatives approved the amendment in May 1866; the Senate did the same the following month. Now the measure needed at least three-fourths of the states to pass it.
Things to remember while reading the Fourteenth Amendment:
- In response to the discriminatory Black Codes that popped up in the South after the Civil War, Congress passed the Civil Rights Act of 1866, which prohibited states from creating different laws or criminal penalties for African Americans and whites. But some Republicans feared a future Congress that was less sympathetic to African Americans could overturn the Civil Rights Act. So they put similar civil rights protections in the first section of the Fourteenth Amendment, knowing it would be very difficult for a future Congress to undo an amendment to the Constitution.
- Congress, like the nineteenth-century public, was divided on whether African American men should have the right to vote, and whether the federal government or the states should make the decision. The second section of the Fourteenth Amendment offered a compromise: States that refused to grant some men the ballot could lose some of their congressional seats, which are based on population. Some people hoped this would give states the incentive to provide African American men the ballot.
- After the Civil War, many Northerners were wary of seeing former Confederate leaders appear in the new Southern state governments—a possible sign that the "rebellion" against the Union had not been extinguished. The third section of the Fourteenth Amendment addresses that concern by barring certain high-ranking ex-Confederates from elected office.
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 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.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
What happened next …
Congress discussed the possibility of requiring the Southern states to adopt the Fourteenth Amendment in order to rejoin the Union. The state of Tennessee jumped at the idea and passed the Fourteenth Amendment during the summer of 1866, then asked to be readmitted to the Union. In the spirit of cooperation, Congress agreed, but some abolitionists were upset this was done without giving African American men in Tennessee the ballot. "Tennessee is permitted to deny to her blacks a voice in the state, while she herself is permitted to resume her voice in the nation," wrote social reformer Theodore Tilton (1835–1907), as quoted in The Struggle for Equality. "The spectacle is a national humiliation."
The Fourteenth Amendment would face a rocky road to approval. The rest of the ex-Confederate states initially rejected it, although some of the new Southern state governments formed under the Reconstruction Acts of 1867 (see Chapter 10) later approved it. Complicating matters, two Northern states that approved it—New Jersey and Ohio—later passed resolutions withdrawing their support. On July 20, 1868, Secretary of State William Seward (1801–1872) announced that the amendment received the necessary three-fourths support from the states, but his count included the withdrawn states of New Jersey and Ohio. In a rare step, Congress passed a resolution declaring the Fourteenth Amendment to be part of the Constitution. In order to reach the three-fourths state approval requirement, Congress's count excluded the Southern states that had not yet been readmitted to the Union. According to The Reconstruction of the Nation, despite this unusual route to approval, "the amendment has been completely validated by practice and judicial decree [court decisions]."
As for the question of African American suffrage, Congress would offer a separate amendment in 1869 granting African American men the right to vote. The Fifteenth Amendment would be approved the following year (see Chapter 16). But it is worth noting: Another half-century would pass before women of either color would get the ballot under a separate constitutional amendment.
Did you know …
- Several leaders of the women's suffrage movement, including Susan B. Anthony (1820–1906) and Elizabeth Cady Stanton (1815–1902), also supported the abolitionist movement to end slavery and give African Americans the ballot (see box). Both causes were based on the idea that all people are equal. But the leaders of the two movements parted ways over the Fourteenth Amendment, as noted in Reconstruction: America's Unfinished Revolution. For the first time in the Constitution, the amendment used the word "male" to describe people entitled to voting rights. The women's suffrage leaders felt "a deep sense of betrayal."
- During the 1866 campaign, some Northern Congressmen painted the amendment as a way to keep the South from attaining too much political power—not as a measure to help African Americans.
- New Jersey, one of two Northern states that withdrew its support for the amendment, later reversed itself again. The state made a symbolic announcement on November 12, 1980, supporting the Fourteenth Amendment. Other states offered their support to the amendment years after it was ratified: Delaware in 1901, Maryland and California in 1959, and Kentucky in 1976.
Consider the following …
- Why didn't the Fourteenth Amendment guarantee voting rights for African American men?
- What political rights, if any, do you think former Confederates should have had after the Civil War?
- Why did the majority in Congress press for the Fourteenth Amendment, after they already passed the Civil Rights Act with some of the same provisions?
For More Information
Flexner, Eleanor. Century of Struggle: The Woman's Rights Movement in the United States. Cambridge, MA: Harvard University Press, 1975.
Foner, Eric. Reconstruction: America's Unfinished Revolution. New York: Harper & Row, 1988.
McPherson, James M. The Struggle for Equality. Princeton, NJ: Princeton University Press, 1964.
Patrick, Rembert W. The Reconstruction of the Nation. New York: Oxford University Press, 1967.
Stalcup, Brenda, ed. Reconstruction: Opposing Viewpoints. San Diego: Greenhaven Press, 1995.
United States Government Printing Office. "Fourteenth Amendment—Rights Guaranteed: Privileges and Immunities of Citizenship, Due Process, and Equal Protection." GPO Access: Constitution of the United States. http://www.gpoaccess.gov/constitution/html/amdt14.html (accessed on September 20, 2004).