The Fourteenth Amendment

Learning Objectives

  • Explain the purpose and the passing of the Fourteenth Amendment
Letter from William Seward to the governors of the states saying that the Congress passed the resolution of the fourteenth amendment and the states need to read and acknowledge the new law.

Figure 1. Form of the Letter of Transmittal of the Fourteenth Amendment to the several states for its ratification. Amendments must be passed by 2/3 of the Congress and Senate and then ratified by at least 3/4 of states. State legislatures in every formerly Confederate state, with the exception of Tennessee, first refused to ratify it. This refusal led to the passage of the Reconstruction Acts. Ignoring the existing state governments, military government was imposed until new civil governments were established and the Fourteenth Amendment was ratified.

The Fourteenth Amendment

Questions swirled about the constitutionality of the Civil Rights Act of 1866. The Supreme Court, in its 1857 decision forbidding black citizenship, had interpreted the Constitution in a certain way; many argued that the 1866 statute, alone, could not alter that interpretation. Seeking to overcome all legal questions, Radical Republicans drafted another constitutional amendment with provisions that followed those of the 1866 Civil Rights Act. In July 1866, the Fourteenth Amendment went to state legislatures for ratification.

The Fourteenth Amendment stated, “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.”

It gave citizens equal protection under both the state and federal law, overturning the Dred Scott decision. It eliminated the Three-fifths Compromise of the 1787 Constitution, whereby slaves had been counted as three-fifths of a free white person, and it reduced the number of House representatives and Electoral College electors for any state that denied suffrage to any adult male inhabitant, Black or White. As Radical Republicans had proposed in the Wade-Davis bill, individuals who had “engaged in insurrection or rebellion [against] . . . or given aid or comfort to the enemies [of]” the United States were barred from holding political (state or federal) or military office unless pardoned by two-thirds of Congress.

The 14th Amendment and Equal Protection Under the Law

This video from the National Constitution Center explains each of the sections of the 14th amendment and what they mean. You can read the full text of the Fourteenth Amendment at the Our Documents website.

The Fourteenth Amendment’s first section includes several clauses: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The Citizenship Clause provides a broad definition of citizenship, nullifying the Supreme Court’s decision in Dred Scott v. Sandford (1857), which had held that Americans descended from African slaves could not be citizens of the United States.

The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without a fair procedure. The Supreme Court has ruled this clause makes most of the Bill of Rights as applicable to the states as it is to the federal government, as well as to recognize substantive and procedural requirements that state laws must satisfy.

The Equal Protection Clause requires each state to provide equal protection under the law to all people, including all non-citizens, within its jurisdiction. This clause has been the basis for many decisions rejecting irrational or unnecessary discrimination against people belonging to various groups. The 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 (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, and Obergefell v. Hodges (2015) regarding same-sex marriage. It also provided the basis for Title IX, a federal civil rights law that was passed as part (Title IX) of the Education Amendments of 1972. It prohibits sex-based discrimination in any school or other education program that receives federal money.

The amendment also answered the question of debts arising from the Civil War by specifying that all debts incurred by fighting to defeat the Confederacy would be honored. Confederate debts, however, would not: “[N]either 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.” This basically states that if a person had bonds from the United States and/or Union, the bonds would be honored by the U.S. government. If a person held Confederate bonds, they would be worthless. Southerners who held both Confederate bonds and enslaved people would not recover this wealth. Thus, claims by former slaveholders requesting compensation for slave property had no standing. Any state that ratified the Fourteenth Amendment would automatically be readmitted. Yet, all former Confederate states refused to ratify the amendment in 1866.

Watch It

This video summarizes how the 14th amendment gave citizenship to the formerly enslaved.

You can view the transcript for “The Fourteenth Amendment” here (opens in new window).

“Swing Around the Circle”

President Johnson called openly for the rejection of the Fourteenth Amendment, a move that drove a further wedge between him and congressional Republicans. In late summer of 1866, he gave a series of speeches, known as the “swing around the circle,” designed to gather support for his mild version of Reconstruction. Johnson felt that ending slavery went far enough; extending the rights and protections of citizenship to freed people, he believed, went much too far. He continued to believe that Blacks were inferior to Whites. The president’s “swing around the circle” speeches to gain support for his program and derail the Radical Republicans proved to be a disaster, as hecklers provoked Johnson to make damaging statements. Radical Republicans charged that Johnson had been drunk when he made his speeches. As a result, Johnson’s reputation plummeted.

Recall that Johnson, a former Democrat from Tennessee, was chosen as Lincoln’s vice presidential candidate because his presence appeased Southern sympathizers who desired a quick peace process. Johnson, however, fought constantly with the Republican majority in Congress. One of their major disagreements was over the federal government’s role in promoting social, political, and economic equality for the formerly enslaved and other Black people. On March 27, 1866, in a message to Congress regarding their proposed civil rights legislation, Johnson explained his constitutional concerns about the bill. In the end, Johnson refused to sign the bill because he believed Congress had no right to guarantee citizenship within the states or to enforce legislation on the individual states. In addition, he challenged the portions of the law that guaranteed full social, political, and economic equality for freedmen by challenging their fitness to vote and become fully functioning members of society. This bill, the Civil Rights Act of 1866, was intended to clarify and support the policies set forth in the 13th and 14th amendments. Even though Johnson vetoed the bill, Congress overrode his veto, marking the first time that the U.S. Congress ever overrode a presidential veto for a major piece of legislation.

President Johnson’s Veto of the Civil Rights Act of 1866

Read through the text of President Johnson’s veto of the Civil Rights Act of 1866. Use the vocabulary terms on the left to help you understand some of the terminology, and consider President Johnson’s viewpoints and perspective.

Vocabulary Text
To the Senate of the United States:
vindication (n): being cleared of blame or trouble

provision (n): part

obligation (n): responsibility

constrain (v): to force
I regret that the bill which has passed both Houses of Congress, entitled “An Act to protect all persons in the United States in their civil rights, and furnish the means of their vindication,” contains provisions which I cannot approve, consistently with my sense of duty to the whole people, and my obligations to the Constitution of the United States. I am, therefore, constrained to return it to the Senate (the House in which it originated) with my objections to its becoming law.
comprehend (v): to include

Gipsies [Gypsies] (n): members of a traditionally nomadic people who originated in northern India and now live chiefly in south and southwest Asia, Europe, and North America

mulatto (n): person of mixed-race ancestry

purport (v): to claim
By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gipsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of these races, born in the United States, is by the bill made a citizen of the United States. It does not purport to declare or confer any other right of citizenship than Federal citizenship; it does not propose to give these classes of persons any status as citizens of States, except that which may result from their status as citizens of the United States. The power to confer the right of State citizenship is just as exclusively with the several States, as the power to confer the right of Federal citizenship is with Congress. . . .
requisite (adj): required Four millions of them have just emerged from slavery into freedom. Can it be reasonably supposed that they possess the requisite qualifications to entitle them to all the privileges and immunities of citizenship of the United States? . . .
probation (n): waiting period

coveted (adj): greatly desired or envied
The policy of the Government, from its origin to the present time, seems to have been that persons who are strangers to and unfamiliar with our institutions and laws, should pass through a certain probation; at the end of which, before attaining the coveted prize, they must give evidence of their fitness to receive and to exercise the rights of citizens as contemplated by the Constitution of the United States. The bill in effect proposes a discrimination against large numbers of intelligent, worthy and patriotic foreigners, and in favor of the negro, to whom, after long years of bondage, the avenues to freedom and intelligence have just now been suddenly opened. . . .
The object of the second section of the bill is to afford discriminating protection to colored persons in the full enjoyment of all the rights secured to them by the preceding section . . . of a State Legislature who should vote for laws conflicting with the provisions of the bill . . .
jurisdiction (n): the official power to make legal decisions and judgments The remedy proposed by this section seems to be in this respect not only anomalous but unconstitutional, for the Constitution guarantees nothing with certainty if it does not insure to the several States the right of making index ruling laws in regard to all matters arising within their jurisdiction, subject only to the restriction, in cases of conflict with the Constitution and constitutional laws of the United States—the latter to be held as the supreme law of the land. . . .
cognizance (n): awareness

concurrent (adj): existing, happening, or done at the same time

tribunal (n): a court of justice
The third section gives the district courts of the United States exclusive cognizance of all crimes and offences committed against the provisions of this act, and concurrent jurisdiction with the circuit courts of the United States, of all civil and criminal cases affecting persons that are denied, or cannot enforce in the courts or judicial tribunals of the State or locality where they may be . . .
The ninth section authorizes the President, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of this act. This language seems to imply a permanent military force that is to be always at hand, and whose only business is to be the enforcement of this measure over the vast region where it intended to operate.
fraught (adj): likely to result in

hitherto (adv): until now
I do not propose to consider the policy of this bill. To me the details of the bill are fraught with evil. The white race and black race of the South have hitherto lived together under the relation of master and slave—capital owning labor. Now that relation is changed; and as to ownership, capital and labor are divorced. They stand now, each master of itself. In this new relation, one being necessary to the other, there will be a new adjustment, which both are deeply interested in making harmonious. Each has equal power in settling the terms; and, if left to the laws that regulate capital and labor, it is confidently believed that they will satisfactorily work out the problem. . . .
safeguard (n): protection

resuscitate (v): to revive
In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish for the security of the colored race safeguards which go indefinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored against the white race. . . .
It is another step, or rather stride, towards centralization and the concentration of all legislative powers in the National Government. The tendency of the bill must be to resuscitate the spirit of rebellion, and to arrest the progress of those influences which are more closely drawing around the States the bonds of union and peace. . . .
impartial (n): unbiased or fair It only remains for me to say that I will cheerfully co-operate with Congress in any measure that may be necessary for the preservation of civil rights of the freedmen, as well as those of all other classes of persons throughout the United States, by judicial process under equal and impartial laws, or conformably with the provisions of the Federal Constitution.
I now return the bill to the Senate, and regret that in considering the bills and joint resolutions, forty-two in number, which have been thus far submitted for my approval, I am compelled to withhold my assent from a second measure that has received the sanction of both Houses of Congress.
Andrew Johnson
Washington, D.C., March 27, 1866.

Reflection Questions

  • What is Johnson’s objection to citizenship for all people born in the United States?
  • According to Johnson, why might four million newly freed people not deserve the “privileges and immunities of citizenship?”
  • According to Johnson, how does this act change the previous process of gaining citizenship?
  • Why does Johnson despise the part of the Civil Rights Act that guarantees protection for the freedmen?
  • What danger does Johnson foresee with giving the president the power to use naval and armed forces to enforce this law?

Link to Learning

Andrew Johnson is considered one of the worst-ever American Presidents. This CBS video examines some of his life and legacy.

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