An Overview of the 14th Amendment
By Stacey Sharp, Assistant Dean of Students, Director of EJD Student Affairs, and Professor of Law
When law school students and professors think about and discuss the 14th Amendment of the United States Constitution, an energy reverberates through the generations of Americans living from the time of ratification to today. This amendment speaks to the core values of the American people and touches every one of us in some way or another. Debate on these values can be heard in the halls of academia, in our courts, in the media, and now on social media as well. Ratified by the states in 1868 and authored by Senator Jacob M. Howard of Michigan, the 14th Amendment emerged in the wake of the Civil War. America had been divided, and this amendment was an attempt to bring its people together and to remedy some of the ills over which the war had been fought.
There are five sections to the 14th Amendment. The text of each section is provided below, with a brief explanation of the key provisions.
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.
Perhaps the best known and certainly the most heavily litigated provision of the 14th Amendment, this section centers around state action, privileges and immunities, citizenship, due process, and equal protection. Seminal cases such as Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Bd. of Ed. of Topeka, 347 U.S. 483 (1954), and Plyer v. Doe, 457 U.S. 202 (1982) helped shape the law in the area of equal protection, but hundreds of other cases have refined the contours of the law’s protection, continuing to this very day.
Importantly, prior to the passage of the 14th Amendment, the rights afforded to individuals under Bill of Rights—the first 10 amendments to the Constitution—were deemed to apply only to actions taken by the federal government. However, under the doctrine of “incorporation,” most (but not all) of those rights are now deemed to apply to the states as well by virtue of the 14th Amendment.
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 2 explains how the House of Representatives should be divided according to the population of each state. The intent was to ensure that African Americans were counted as full citizens for purposes of calculating proportional representation. Notably, although the text refers to “male” inhabitants and citizens, the 19th Amendment subsequently gave women the right to vote in 1920, so it retroactively applied to the 14th Amendment. Thus, women are now counted as part of the population for purposes of this amendment.
Section 3 and 4
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
These sections offer guidance as to how to deal with the aftermath of the Civil War, given that a substantial portion of the citizenry had openly fought the government just a short while earlier. Basically, section 3 states that anyone who aided the enemy cannot run for or hold office unless cleared by a two-thirds majority of both the Senate and the House of Representatives. Section 4 addresses the validity of debt incurred by the Civil War.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This section is self-explanatory: it gives Congress the power to enforce the other substantive provisions that make up the 14th Amendment.
As the above summary suggests, the 14th Amendment was very much a creature of the historical moment in which it arose, but it is also an important part of our nation’s current and evolving character. It has been applied in recent cases such as Gloucester County School Board v. G.G. ex rel Grimm, No. 16-273, 2017 WL 855755 (U.S., Mar. 6, 2017) (transgender rights in schools), Bethune-Hill v. Virginia State Board of Elections, 580 U.S. ___, 2017 WL 774194 (2017) (racially motivated voting districts), and McDonald v. City of Chicago, 561 U.S. 742 (2010) (right to bear arms). You will read more about these recent cases and others in the articles that follow.
If the drafters of the 14th Amendment were alive today, they would undoubtedly be amazed at the changes in society and the ways in which that amendment has been applied. Generations from now, we will no doubt feel similarly. That is both the beauty and the challenge of a “living document” like the Constitution—of which the 14th Amendment is, arguably, the heart.
Stacey Sharp serves as Professor of Law, Assistant Dean of Students, and Director of the Executive Juris Doctorate program for Concord Law School at Purdue University Global. The views expressed in this article are solely those of the author and do not represent the view of Concord Law School at Purdue University Global, including its parent companies, subsidiaries, and affiliates.
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