Fourteenth Amendment

The Fourteenth Amendment of the U.S. Constitution contains several notable rights and protections, such as applying due process and equal protection to State law. Moreover, the Fourteenth amendment includes citizenship, state action, privacy rights, apportionment, disqualification for rebellion, debt, and the enforcement clause, among other rights. The Fourteenth Amendment contains five sections in total.

  • Section One includes citizenship, privileges or immunities clause, due process clause, and equal protection clause.
  • Section Two deals with the apportionment of representatives to Congress.
  • Section Three forbids anyone who participates in “insurrection or rebellion” against the United States from holding federal office.
  • Section Four addresses federal debt and repudiates debts accrued by the Confederacy.
  • Section Five expressly authorizes Congress to enforce the Fourteenth Amendment “by appropriate legislation.” 

The states ratified the Fourteenth Amendment in 1868 in the immediate aftermath of the American Civil War, along with the other Reconstruction Amendments, the Thirteenth and Fifteenth.

Citizenship

The Citizenship Clause, also known as the Naturalization Clause, is contained in Section One of the Fourteenth Amendment. The clause conferred U.S. citizenship at birth to all individuals born in the United States and State citizenship to the State the individual was born in.

African Americans

In Dred Scott v. Sanford (1857), the Supreme Court held that African Americans were not U.S. citizens, even if they were free. However, the Fourteenth Amendment overturned Dred Scott by guaranteeing that everyone born or naturalized in the United States and under its jurisdiction is a United States citizen. It also ensured that federal citizenship was also made primary, which meant that states could not prevent freed slaves from obtaining state citizenship and thus federal citizenship. As such, the Fourteenth Amendment effectively overturned Scott v. Sanford.

Native Americans

In contrast, Elk v. Wilkins (1884), the Supreme Court held that children born to members of Native American tribes governed by local tribal governments were not automatically granted citizenship under the Fourteenth Amendment. Congress, however, granted citizenship to Native Americans in 1924 when it passed the Indian Citizenship Act.

State Action

The State Action Clause of the Fourteenth Amendment prevents discrimination or any other violations of a person’s rights/protections by state agents or government entities, but not private actors. In the Civil Rights Cases (1883), the Supreme Court ruled that the Civil Rights Act of 1875, which prohibited racial discrimination in public accommodations, was unconstitutional because it tried to regulate private actors. 

The Court also handled a number of cases dealing with racial discrimination by private actors. In Shelley v. Kraemer (1948), the Supreme Court held that the judicial enforcement of a private restrictive covenant that prohibited non-white occupants violated the equal protection clause of the Fourteenth amendment. In Burton v. Wilmington Parking Authority (1961), a restaurant which leased space in a public parking garage was found to engage in racially discriminatory practices. The Supreme Court, influenced by the fact that the garage was used for public parking, ruled that the restaurant was closely tied to the state in such a way that the discrimination could be considered state action. As such, the Supreme Court decided that the restaurant's discrimination unconstitutionally violated the Equal Protection Clause. 

Equal Protection

The Equal Protection Clause refers to the fact that all persons within the United States are guaranteed equal protection under the laws of the United States. Equal Protection within the fourteenth amendment applies these protections to the individual States. 

When a statute or ordinance, or other State action discriminates against an individual or a class of individuals based on suspect classifications, the court will apply one of three levels of scrutiny to the law in question:

  • Rational Basis
    • This is the lowest level of scrutiny imposed
  • Intermediate Scrutiny
    • This is an intermediate level of scrutiny imposed (typically used for laws which discriminate on the basis of gender, disability, or illegitimacy)
  • Strict Scrutiny
    • This is the highest level of scrutiny imposed (typically used for laws which discriminate on the basis of race, national origin, alienage, or religion, as well as for laws which infringe on fundamental rights)

Enforcement Against Private Parties

In the Civil Rights Cases (1883), the Court ruled that Congress did not have the power to legislate against discrimination by private individuals, because Section One of the Fourteenth Amendment only applies to actions committed by a state or state agents. However, if the private party discriminates while engaging in public action (such as a private university which accepts federal funding), then that party would be subject to the Fourteenth Amendment.

In a number of cases, the Court has continued to limit state action claims against private individuals. In Jackson v. Metropolitan Edison Co. (1974), the Supreme Court ruled that Section One of the Fourteenth Amendment does not apply when electric utilities stop service to customers. The Court also determined in Flagg Brothers, Inc. v. Brooks (1978) that there was no Section One liability for a warehouse-workers selling stored property to make good back payments. 

Due Process Clause

The Due Process Clause of the fourteenth amendment guarantees that states will enforce the laws of government fairly and through just procedures. The Fifth and Fourteenth Amendments both contain a Due Process Clause, although the Fourteenth Amendment applies explicitly to the states. The Supreme Court has interpreted the Due Process Clauses in both articles as having the same meaning. Due process is generally understood to contain two concepts: procedural due process and substantive due process.

Privacy Rights

The Supreme Court has historically used substantive due process from the fourteenth amendment to establish privacy rights in Griswold v. Connecticut (1965). The Court also relied upon the right to privacy in several other cases involving individual liberties, such as permitting abortions in Roe v. Wade (1973), and decriminalized same-sex sexual activity in Lawrence v. Texas (2003). However, in 2022, the Supreme Court overturned Roe v. Wade through Dobbs v Jackson (2022), which concluded that right to abortion no longer falls under the broader right to privacy. While it is unclear to what extent that may have on the current right to privacy; it is likely that the case law around this right will continue to evolve with more Supreme Court decisions.   

Apportionment

Section Two of the Fourteenth Amendment deals with apportionment of representatives in the Federal government based on State population. The abolition of slavery meant that the representation of former slaves in the House of Representatives increased. This clause of the Fourteenth Amendment was drafted to encourage Southern states to grant Black Americans the right to vote. Congress did not really try to enforce the clause. The Supreme Court affirmed in Richardson v. Ramirez (1974), that under Section Two, states can prohibit convicted felons from voting after they have served their prison sentence. 

Disqualification for Rebellion

Section Three of the Fourteenth Amendment disqualifies an individual from serving as a state or federal official if that person has "engaged in insurrection or rebellion against" the United States. Although the clause was written in the context of the Civil War, it would theoretically still apply for members of future rebellions or insurrections against the United States.

Debt

The Public Debt Clause of the fourth section of the Fourteenth Amendment involved making the national debt unquestionable and repudiating Confederate debt. In Branch v. Haas (1883), a federal court decided that contracts involving Confederate debt would not be enforced, although contracts that involve Confederate currency are enforceable to prevent injustice to those who were required to accept them during the Civil War. The issue of the repudiation of the United States’ debt came up again in the Gold Clause Cases (1935). In those cases, the Supreme Court held that Congress exceeded its authority by refusing to pay bonds in gold, but that the debt holders could not recover because the damage was only nominal.

Enforcement Clause

The Enforcement Clause of Section Five of the Fourteenth Amendment grants Congress the power to pass laws that make Sections One through Four of the Fourteenth Amendment effective. The scope of the Enforcement Clause is limited because Congress is only permitted to enforce the provision through appropriate legislation. 

[Last reviewed in December of 2024 by the Wex Definitions Team]

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