Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Considered one of the most consequential amendments, it addresses citizenship rights and equal protection under the law at all levels of government. The Fourteenth Amendment was a response to issues affecting freed slaves following the American Civil War, and its enactment was bitterly contested. States of the defeated Confederacy were required to ratify it 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, Loving v. Virginia, Roe v. Wade, Bush v. Gore, Obergefell v. Hodges, and Students for Fair Admissions v. Harvard.
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, which held that Americans descended from African slaves could not become American citizens. The Privileges or Immunities Clause was interpreted in the Slaughter-House Cases as preventing states from impeding federal rights, such as the freedom of movement. The Due Process Clause builds on the Fifth Amendment to prohibit all levels of government from depriving people of life, liberty, or property without substantive and procedural due process. Additionally, the Due Process Clause supports the incorporation doctrine, by which portions of the Bill of Rights have been applied to the states. The Equal Protection Clause requires each state to provide equal protection under the law to all people, including non-citizens, within its jurisdiction.
The second section superseded the Three-fifths Compromise, apportioning the House of Representatives and Electoral College using each state's adult male population. In allowing states to abridge voting rights "for participation in rebellion, or other crime," this section approved felony disenfranchisement. The third section disqualifies federal and state candidates who "have engaged in insurrection or rebellion," but in Trump v. Anderson, the Supreme Court left its application to Congress for federal elections and state governments for state elections. The fourth section affirms public debt authorized by Congress while declining to compensate slaveholders for emancipation. The fifth section provides congressional power of enforcement, but Congress' authority to regulate private conduct has shifted to the Commerce Clause, while the anti-commandeering doctrine restrains federal interference in state law.
Section 1: Citizenship and civil rights
Background
Section 1 of the Fourteenth Amendment formally defines United States citizenship and protects various civil rights from being abridged or denied by any state law or state action. In Shelley v. Kraemer, the Supreme Court held that the Fourteenth Amendment's historical context of countering the discriminatory Black Codes of southern states must be used in its interpretation. Primarily written by Representative John Bingham, Section 1 is the most frequently litigated part of the amendment, and this amendment is the most frequently litigated part of the Constitution.Citizenship Clause
The Citizenship Clause overruled the Supreme Court's Dred Scott decision that African Americans could not become citizens. The clause constitutionalized the Civil Rights Act of 1866's grant of citizenship to all born within the United States, except the children of foreign diplomats. Compared against European jus sanguinis laws that assign citizenship by one's parents, historians have framed the United States' Citizenship Clause as an extension of the Fourteenth Amendment's egalitarian principles.Congress' debate over the Citizenship Clause shows explicit rejection of Senator Edgar Cowan's anti-Romani sentiment, affirming that birthright citizenship cannot be revoked from children born to disfavored ethnic minorities. Birthright citizenship was meant to repudiate the American Colonization Society's repatriation of freeborn people of color and emancipated slaves to Africa. In United States v. Wong Kim Ark, the Supreme Court confirmed that children born in the United States receive birthright citizenship, regardless of whether their parents are non-citizen immigrants.
In Elk v. Wilkins, the Supreme Court interpreted the Citizenship Clause as granting birthright citizenship to all born within the jurisdiction of the United States and allowing Congress to establish alternative pathways for naturalization. Consistent with the views of the clause's author, Senator Jacob M. Howard, the Supreme Court held that because Indian reservations are not under the federal government's jurisdiction, Native Americans born on such land are not entitled to birthright citizenship. The 1887 Dawes Act offered citizenship to Native Americans who accepted private property as part of cultural assimilation, while the 1924 Indian Citizenship Act offered citizenship to all Native Americans born within the nation's territorial limits.
In Mackenzie v. Hare, the Supreme Court upheld the Expatriation Act of 1907, which dictated that all American women who voluntarily married a foreign alien renounced their American citizenship. Perez v. Brownell similarly held that Congress could designate voting in foreign elections or draft evasion as renunciations of citizenship. However, in Afroyim v. Rusk and Vance v. Terrazas, the Supreme Court reversed itself, holding that renunciations of American citizenship must be formally expressed.
In January 2025, President Donald Trump issued Executive Order 14160 to deny birthright citizenship to children with parents of illegal or temporary immigration status. While this topic was not considered by the 39th Congress, nor has it been addressed by the Supreme Court, enforcement of the executive order has been blocked as unconstitutional by multiple federal judges. Furthermore, many of the freed slaves whose children were covered by the Citizenship Clause were illegal immigrants brought in violation of the 1807 Act Prohibiting Importation of Slaves.
Privileges or Immunities Clause
The Privileges or Immunities Clause was written to provide congressional power of enforcement to the similar Privileges and Immunities Clause of Article Four of the Constitution. In 1823, Supreme Court Justice Bushrod Washington decided Corfield v. Coryell, interpreting the latter clause as protecting the right to travel, seek habeas corpus, and hold property in multiple states, among other rights. In the Slaughter-House Cases, the Supreme Court rejected arguments that the Privileges or Immunities Clause further incorporated the Bill of Rights against state governments or transferred police power to the federal government. In McDonald v. City of Chicago and Timbs v. Indiana, Supreme Court Justice Clarence Thomas advocated transferring the incorporation doctrine from the Due Process Clause to the Privileges or Immunities Clause, but this has been criticized as a veiled attempt to restrict the rights of non-citizens within the United States.Due Process Clause
The Due Process Clause of the Fourteenth Amendment explicitly applies the Fifth Amendment's similar clause to state governments. This reinforcement of due process rights was in response to the Fugitive Slave Act of 1850 allowing slave owners to recapture their fugitive slaves "without process" and rejecting the testimony of alleged fugitives. In protecting all people against arbitrary denial of life, liberty, or property, courts have recognized both procedural and substantive due process. Procedural due process deals with the processes for restraining life, liberty, or property, such as the right to be notified of a hearing by a neutral decision-maker. In comparison, substantive due process involves the government's justification for engaging in those processes.In deciding whether legislation unconstitutionally infringes on one's liberty, most government acts are subject to rational basis review, under which the government must present a legitimate state interest and the law must be rationally related to advancing that interest. When the government infringes on fundamental rights, such as racial equality, strict scrutiny requires its actions to instead be narrowly tailored to address a compelling state interest.
The early 20th century has been referred to as the Lochner era for the Supreme Court's embrace of a freedom of contract in cases like Allgeyer v. Louisiana and Lochner v. New York. While that freedom was ultimately curtailed in West Coast Hotel Co. v. Parrish, those early cases recognized substantive due process rights within the Due Process Clause. For example, Meyer v. Nebraska and Pierce v. Society of Sisters struck down anti-immigrant state education laws as violations of substantive due process.
In 1890, future Supreme Court Justice Louis Brandeis and his law partner, Samuel D. Warren II, published "The Right to Privacy" in the Harvard Law Review. While the article only advocated for tort actions to protect one's privacy, the Supreme Court later elevated privacy to a fundamental right, protecting contraceptive sales in Griswold v. Connecticut, consensual sex in Lawrence v. Texas, and same-sex marriage in Obergefell v. Hodges under substantive due process. In Roe v. Wade, the Supreme Court recognized a substantive due process right to abortion, but that holding was overturned in Dobbs v. Jackson Women's Health Organization, which stated that "a right to abortion is not deeply rooted in the Nation’s history and traditions."