The Reconstruction Era lasted from 1865 to 1877. During this period, the southern states that seceded to the Confederacy (Tennessee, Mississippi, North Carolina, South Carolina, Louisiana, Alabama, Virginia, Florida, Arkansas, Texas, and Georgia) were being “reconstructed” by the dominating northern states. Military governments were established in the rebellious states to ensure that all of the provisions that were required of the southern states to be re-admitted to the Union were passed. Amendment XIV was one such provision. The Fourteenth Amendment was made shortly after the Civil War had ended. Abraham Lincoln wanted to set up a set of guidlines to see that the South could be re-admitted, but Abraham Lincoln never saw his plan for reconstructing the South go into action, since he was assassinated by John Wilkes Booth. After 1875, Congress did not act as an “important interpreter” of the Fourteenth Amendment (Nelson 149). The Supreme Court took over Congress’s responsibility as interpreter. It was to ensure that Southern Democrats would not regain power and to prevent the abuse of minority rights by the majority.
The Fourteenth Amendment guarantees citizenship and due process of law all to citizens, and, more specifically, sought to ensure that the southern states would be legally forced to recognize former slaves as citizens and protect their rights. The Fourteenth Amendment features five parts of it: fair and due process to all “persons”, the reduction of representation of the South (barring the south prevented persons from voting), no admittance to Congress a person involved in the rebellion of the South, the elimination of Confederate debt, and Congress being placed in charge for the Reconstruction (http://www.constitutioncenter.org). Since its enactment over a century ago, the Fourteenth Amendment has been constantly utilized by the United States Supreme Court because of its vitality to the Constitution. The amendment was absolutely necessary and it has been very influential in the United States history even to the present. Although the validity of the Fourteenth Amendment was questioned during the reconstruction period, its significance has shaped and influenced the history of the United States.
The significance of the Fourteenth Amendment is to guarantee "civil liberties of individual Americans and to protect these individual rights from action by state and local government" (Patterson 91). The framers of our Constitution undertook to secure conditions favorable to the "pursuit of happiness". As they acknowledged man's spiritual nature, intellect and feelings, they recognized that material things only comprised of pain, pleasure and satisfaction of life. As a result, they sought to protect beliefs, thoughts, emotions and sensations of Americans. The Fourteenth Amendment ensures that any "unjustifiable intrusion by the government upon the privacy of an individual, is a violation of the constitution and every person under the law has due process of law and the right to be let alone". (http://www.constitutioncenter.org)
The First Section, the section of most importance to the amendment reads: "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" (James 55). This Section incorporated the Civil Rights Bill of 1866 into the Constitution and gave it the safety net that only came from the Constitution, that is, another amendment would be required to remove or change the effects of the amendment. The Civil Rights Bill of 1866 gave citizenship to any person, regardless of race, color, or previous condition of servitude. The Fourteenth Amendment gave this same guarantee to former slaves but in constitutional form. The amendment also legally prevented the states from blocking any rights blacks would have under the Bill of Rights from them. The amendment was ratified by oppressive northern military regime that dominated the southern states until 1877 when the Reconstruction era ended.
The Fourteenth Amendment states in Section Two, that
Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, counting the whole number of citizens of the United States… provided that whenever in any State civil or political rights or privilege shall be denied or abridged on account of race or color, all persons of such race or color shall be excluded from the basis of representation or taxation.
This means that representation and taxation will still be based on population but that if any state denies the right to vote to a group of people than that states’ representation in congress will reflect such. While the states retained the right to control elections and the election process, this prevented the southern states from denying the freed slaves from voting and also reduced the power of the southern states in Congress. That reduction of power was one of the main goals of the Fourteenth Amendment. Under section one of the amendment, all slaves are now counted as a whole person for purposes of representation and taxation, whereas they were counted as three-fifths a person while slavery was intact. This vastly increased the Congressional representation of the southern states, threatening the northern stranglehold of power during the Civil War.
Section three states that “No person shall… hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath… to support the Constitution of United States, [having] engaged in an insurrection or rebellion against the same.” This section was drafted to ensure that Confederate officers or congressmen whom had secceeded from the Union could not again hold any offices in the government, except by a two-thirds majority vote in each house. This section ensured that the North majority would be safe from the re-admittance of southern radicals who would once again cause problems prevalent to Congress prior to the Civil War.
The fourth section is about the debts of the Confederacy, and states that those that were not collected before the end of the war being null and void. This act was to punish those that had helped the Confederacy. The United States government also took it upon itself to pay the insurance debts (i.e. destroyed homes and crops by Union soldiers) caused by the war, even though those debts were a responsibility of the state to the people of that state. This meant that those insurrectionist states were indebted to the government, making it easier to rebuild their states from the devastation caused by the war. The fifth section of the Fourteenth Amendment is a mandatory statement saying that any and all laws congress needs to pass to enforce the rest of this amendment, it can and will pass.
Proposed in 1866 but ratified in 1868 shortly after the Civil War, the Fourteenth Amendment came to "protect first amendment rights from state action" (Patterson 97). Due to political "upheavals that resulted in national disruption of power relationships, the ratification process became a fascinating" but yet an integral chapter in Constitutional history (James 1). The Fourteenth Amendment was originally ratified to protect the citizen from the "abrogation of his rights by the Southern states. Looking to protect the African American, the amendment made him a citizen and forced the federal government to be responsible for him. The Fourteenth Amendment prohibited the "states from denying or abridging the fundamental rights of every citizen" (http://campus.northpark.edu/history/WebChron /USA/14Ammend.html).
Ratification of the document was delayed due to the fact that it occurred toward the end of the Civil War on July 28, 1868. In order to be readmitted to the Union, Southern states were required to ratify the Amendment. Despite much enthusiasm for the amendment, the ratification enacted some problems. The primary issue was how the courts should interpret the amendment in ruling and deciding outcomes for cases brought before it. Supporting this concern, historian Joseph B. James states that "For more than a hundred years, the courts have applied the Fourteenth Amendment to the U.S. Constitution to pertinent cases that came before them. Although questions have been raised about both its meaning and the correctness of its long usage and indirect pronouncements of the Supreme Court concerning its acceptance as law" (James 1).
In order to understand the intentions of the Fourteenth Amendment, it is important to examine the circumstances under which it was ratified. Various states differed in their view of the Amendment; South Carolina, for example, raised mostly substantive, rather than racist objections to the Amendment, while Mississippi was concerned both with the scope of powers allotted to the Federal Government and the racial consequences of equality for freedmen. But none of the debaters in any state were prescient enough to predict the long-term effects of Section 1 of the Amendment. Instead, much of the heated debate over the Fourteenth Amendment centered on the sections with shorter-term effects, like the third and fourth, as well as the fifth, which gave Congress the power to enforce the Amendment.
It first must be stated that “the South” is seen, in hindsight, as a cohesive unit that banded together to advocate narrow interests, specifically state’s rights, belief in the inferiority of blacks and fear of the consequences of equal rights for freedmen. All of these ideals were prevalent in the South, and it is hard to make a claim that many conservative white southerners in the days after the Civil War eschewed any of those philosophies. Yet, it is important to realize that the importance of particular interests varied heavily, depending on the individual state. “Some southern whites fought to preserve white supremacy, some fought to protect their economic interests, and some fought to settle old political scores that antedated the Civil War (Bond 2).” Still more fought against what they saw as an overly interventionist Federal Government and warned against nightmarish visions of the future.
At the conclusion of the Civil War, most of the 11 southern states were on the bad side of the Federal Government. President Andrew Johnson started the Reconstruction of the South by appointing provisional governors to each state and ordering them to call conventions to immediately accomplish three goals: repudiate secession, abolish slavery and ratify the Thirteenth Amendment. Pro-Union governments were already formed in Arkansas, Louisiana, Tennessee and Virginia and had already accomplished these goals. By the fall of 1865, all states had agreed to the first two provisions, and only Mississippi refused to ratify the Thirteenth Amendment (Bond 2).
Yet just as it seemed that the southern states were accepting defeat and agreeing to guarantee equal rights for their newly freed citizens, many states imposed Black Codes, laws which severely limited the rights of the former slaves. These laws were based on the ethos of the day, which said that blacks were inferior and simply not entitled to equal rights to whites. In response to this, an angry Congress refused to admit Southern congressmen back into power, despite President Johnson’s reinstitution of the states to the Union. Congress, controlled by radical Republicans at the time, passed both the Civil Rights Bill and the Fourteenth Amendment in 1866, both of which were denounced by the President (Bond, 3).
Meanwhile, the 1866 elections were seen as a referendum on the Fourteenth Amendment. When voters sounded definitive wins for pro-14th representatives, the South faced a crossroads: ratify the Fourteenth Amendment--making it law--or continue to fight against it. All but Tennessee decided to pursue the latter course (Bond, 5).
Congress, in response, imposed military Reconstruction, which divided the South into five military districts and set four new criteria for restoration to the Union: adding all black males over the age of twenty-one to the voting rolls, as well as subtracting certain white voters from the rolls. Second, a constitutional convention was to be held in each state, and the resulting document must be sent to the voters for approval. Elections for public officials would then be held after approval. Then, the elected legislature must approve the Fourteenth Amendment. Then, Congress would re-seat the state’s congressional representation (Bond 5).
Finally, in the summer of 1868, two years after the Fourteenth Amendment was passed by Congress, the “reconstructed” legislatures in most of the Southern states approved the Amendment. Those two years and the debates that filled the public consciousness in the South for that time are fascinating.
Many Southern whites felt that Congress’ intent was to subordinate the white man to the freed blacks, in other words, a complete reversal of the slavery system. This fear manifested itself in white efforts to make sure that suffrage remained under State control, which was one of their main objections to the Fourteenth Amendment. Whites wished to make sure that voting rights would remain a white privilege, for if blacks could vote, it was feared that they would rise up and subordinate whites. “The best governments are those where the sense of the nation is spoken by the few; who are more enlightened, and who are the representatives not only of the intelligence, but of the conservatism of the people” (Bond 125).
Another objection that many whites had to black citizenship was the idea that blacks were simply not intelligent enough to handle the responsibilities. “One of the most ignorant and undeveloped of races was to be placed by mere legislative fiat in absolute power over a large portion of a race notable for centuries for the highest success in self-government” (Bond 123). Others were less concerned with increased rights for blacks than they were with the idea that the Amendment would “open the door for congressional legislation concerning our domestic affairs (Bond, 34).” This objection, dealing with states’ rights, would prove to be the most heated debate among Southerners.
Southerners debated every detail and section of the Amendment. Section 1 was and is the most important part of the Amendment, but often, the ratification debates showed a somewhat superficial understanding of Section 1’s possible long-term implications. Some people thought Section 1 to be so innocuous as to be beyond debate. In South Carolina, “Section 1 was apparently so unobjectionable that one early, detailed analysis of the Amendment omitted any comment on it” (Bond, 124). The Southern debate shows that most people thought Section 1 simply guaranteed due process of law and equal protection under the law for every citizen. In other words, “the amendment was intended to nationalize the protection of individual liberty within the federal structure ordained by the original Constitution” (Bond, 252).
However, over the years the true meaning of Section 1 has become the foremost question in Constitutional Law. Scholars, including James E. Bond believe that the United States Supreme Court has perverted the original meaning of the Fourteenth Amendment to include the Bill of Rights in the “privileges and immunities” clause of Section 1. In other words, Southerners assumed that Section 1 simply guaranteed procedural rights, not substantive rights. But over time, the Supreme Court has interpreted that clause to include the Bill of Rights. Bond believes that:
“Had anyone even suspected, much less understood, that the due process clause or any other clause of Section 1 incorporated the Bill of Rights, that clause would have been the focus of the ratification debate…The silence of conservative opponents on the due process clause proves it was not thought to protect any substantive rights, let alone all those contained in the Bill of Rights” (Bond, 252-253).
The most strenuous argument in the South against the ratification of the Fourteenth Amendment was centered on Section 5, which read, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The South saw this provision, simply stating that Congress would be allowed to enforce the law, as a potentially tyrannical intrusion on states’ rights by the Federal Government. The Mississippi legislature said, in a typical argument:
“The Fourteenth Amendment confers in Congress large and undefined power, at the expense of the reserved rights of the State. It transfers to the Unites States a criminal and police regulation over the inhabitants of the States, touching matters purely domestic. It intervenes between the State Government and its inhabitants on the assumption that there is an alienation of interest and sentiment between certain portions of the population. And that such intervention is for the benefit of one class against another” (Bond 39).
The ratification debate in the South lasted for two years, but nobody foresaw anything resembling the current consequences of the Fourteenth Amendment. The true legacy of the Fourteenth Amendment is twofold: First, the guarantee of equal protection under the law for all citizens, and second, increased federal power. Southerners, at the time, understood that the federal government would be granted new powers to enforce the law, but even the most reactionary Confederate sympathizers did not predict that the Supreme Court would one day include the Bill of Rights in the equal protection clause of the Fourteenth Amendment.
Besides the emphasis on the Reconstruction, the Fourteenth Amendment is used for its “due process” element. Also, the Fourteenth Amendment has been used along with the First Amendment to back freedom of speech. Slaughter-House Cases, Gitlow vs. New York, Near vs. Minnesota, Miranda vs. Arizona, and Roe vs. Wade illustrate the importance of the Fourteenth Amendment to the system of government that the U.S. has. The Fourteenth Amendment also prohibits state laws that contradict with the federal laws.
Live-Stock Dealers’ & Butchers’ Ass’n vs. Crescent City Live-Stock Landing & Slaughter-House Co. otherwise known as the Slaughter-House Cases, was the first case that the Supreme Court ruled with the outcome determined by its accordance to the Fourteenth Amendment (Nelson 149). A Louisiana law stated that butchers were prohibited from “carrying on their trade on their own premises, but instead were directed to rent quarters in the corporation’s slaughterhouse” (Nelson 155). Officials of Louisiana created a corporation to handle the slaughtering of all animals sold in New Orleans. Butchers protested this law and took it to the Supreme Court. One of the Justices, Justice Miller, commented that the Louisiana legislation ‘creat[ed] a monopoly and conferr[ed] odious and exclusive privileges upon a small number of persons at the expense of the great body of the community of New Orleans’ (Nelson 158). This law was dismissed since it acted against federal law and created a monopoly in the slaughter-house industry. However, the Supreme Court's ruling in the 1873 Slaughterhouse cases "diluted the amendment so much that all federal control over state police powers was virtually eliminated" (US of American Chronology). Unquestionably, the Fourteenth Amendment was the most important of all and it has radically changed the definition of the United States Citizen.
Another case, Gitlow vs. New York, illustrates how the Fourteenth Amendment prohibits state laws that are in violation of federal laws. In 1925, Benjamin Gitlow, a Communist, had violated a New York law concerning the prohibition of being an accomplice to planning an overthrown of the government. He delivered speeches and published pamphlets, such as “The Left Wing Manifesto” and “The Revolutionary Age,” about overthrowing the federal and state governments (http://cwx.prenhall.com/bookbind/pubbooks /burns4/medialib/docs/gitlow.htm). The Supreme Court interpreted this case an infringement of individual rights by a state (Patterson 97). He could not be convicted since freedom of speech could not be denied to anyone. Unless he actually did attempt to overthrow the government, Gitlow could not be charged with any crime.
Another case that helps illustrates the “due process” section of the Fourteenth Amendment. The Supreme Court ruled in Jay Near’s favor in the case of Near vs. Minnesota in 1931, since the case was an infringement of individual rights by a state (Patterson 97). The Minnesota government shut down the weekly newspaper that was published by Jay Near and Howard Guilford called The Sunday Press. The newspaper “regularly made scurrilous attacks on blacks, Jews, Catholics, and labor union leaders” (Patterson 97). The Sunday Press violated the Public Nuisance Law in Minnesota. A judge in Minnesota who would find any publication to be an ‘obscene, lewd and lascivious newspaper, magazine or other periodical, or a malicious, scandalous and defamatory newspaper’ would shut down the publication. (http://www.college publisher.com/jacc/news/58400.html). A county judge did just that to The Sunday Press. Also, to prevent Howard Guilford and Jay Near from publishing their newsletter under a different name, the judge ruled that Near and Guilford could not ‘produce, edit, publish, circulate, have in their possession, see, or give away any publication know by any other name… containing matter of the kind alleged in the plaintiff’s complaint’ (http://www.collegepublisher.com/jacc/new/ 58400.html).
In 1971, Near vs. Minnesota was cited again when the Pentagon Papers incident occurred. Written in 1967, Pentagon Papers are about the involvement of the United States in the Vietnam War and the truth about the history behind the involvement (http://www.collegepublisher.com/ jacc/new/58400.html). When one of the authors of the Pentagon Papers, Daniel Ellsberg, sent the New York Times and the Washington Post copies of the portions of the Pentagon Papers that he had secretly copied, the Attorney General in 1971, John Mitchell, had the publications put to a halt. The Supreme Court ruled that the Pentagon Papers were a violation of the Constitution and that citizens have a right to know what their tax dollars are being used to support.
Another case where the “due process” clause was enacted, Miranda vs. Arizona, occurred in 1966. Ernesto Miranda had been arrested on kidnapping and rape charges. When he had been brought into the police station to be interrogated about the impending charges, he had confessed to them and had signed a written statement to verify that he did, indeed, commit these horrendous acts. He had been identified in a police line-up; then, he was questioned, but the police officers who interrogated him did not tell him that he could have a lawyer present (http://www.infoplease.com/ce6/history/A0833372.html). The Supreme Court overturned Miranda’s conviction, since Miranda was not informed of his rights while being interrogated. Miranda was later put on trial for the kidnap and rape, and was convicted. Now, before being interrogated by police officers, the police officers have to read the “Miranda Rights” to the suspect. These rights are “the right to remain silent; that anything they say may be used as evidence against them; that they may request the presence of an attorney, either retained by themselves or appointed by the court; and that they have the right, even after beginning to answer questions, to stop answering or request an attorney” (http://www.infoplease.com/ce6/history/A0833372.html).
Roe vs. Wade is another case where the Fourteenth Amendment proved itself to be useful. Texas had laws concerning abortion, these laws were against abortions, except ones where the mother’s health was at a great risk. In 1971, a single pregnant woman challenged this law, and the Supreme Court judged the Texas law to be unconstitutional (http://www.priestsforlife.org/ government/supremecourt/7301roevwade.htm). According to one of the justices of the Supreme Court who ruled in this case, Justice Harry Blackmun, he states, “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy” (http://members.aol.com/abtrbng/roefl-o2.htm). This case is still controversial today.
Under the Fourteenth Amendment, due process is guaranteed to all “persons.” While the term “persons” may seem to mean any citizen or human being in the United States, it means more; The Chairman of the Committee that drafted the Fourteenth Amendment, Roscoe Conkling, and his associates that helped with the draft “intentionally used the word “person” in order to include corporations” (Reconstruction 107). Based on Conkling’s testimony to the Supreme Court in 1882, the definition of “person” in the Fourteenth Amendment came to also mean corporations. This meant, under the Fourteenth Amendment, that no state could “deprive any [corporation] of life, liberty, or property without due process of the law, nor deny to any [corporation]… the equal protection of the laws.” And the Supreme Court upheld this belief into the early twentieth century when a federal act banned the interstate shipments of products created by children laborers; the courts declared the act unconstitutional under the 10th Amendment, which prohibited the national government from interfering with business practices which could only be regulated by a State. In a 1905 case, however, the Supreme Court upheld their belief that “person” under the 14th amendment also included corporations, and prohibited the states from regulating labor practices (Patterson 72). These contrasting views helped worsen the Great Depression later on.
The Bill of Rights played little role in courts or in the lives of ordinary Americans before the Civil War, but the ratification of the Fourteenth Amendment brought about a change that "reaffirmed the freedoms of the Bill of Rights" (http://www.constitutioncenter.org). It made most of the rights and privileges "applicable against State and Local governments. This new birth of freedom responded to the abuses of the proslavery State governments before the Civil War: in order to support the slave system, these governments had censored anti-slavery newspapers, repressed abolitionist preachers, conducted unreasonable searches, and abridged other fundamental rights". The Fourteenth Amendment "crystallized a more national vision of freedom" that at its core has come to give considerable "latitude to individual citizens" (http://www.constitutioncenter.org).
The Fourteenth Amendment was also very important much later on, in the 1950s and 1960s. While originally constructed to deal with the rights of freedmen, cases such as Brown v. Board of Education turned to a quite similar issue. Its interpretation came to be the "legal heart of the Civil Rights movement of the 1960s (US of American Chronology). The Amendment has shaped the history of the United States, and will continue to do so. While the ratification debate and the short termed goals of the Amendment were more important to those that drafted it, the First Section has proved to be more useful than any ever imagined in the twentieth century. The Fourteenth Amendment is still as prevalent and controversial today as it was when it was drafted. Under the Fourteenth Amendment, discrimination based on race is illegal. Affirmative Action is one of the most controversial topic that uses the Fourteenth Amendment. Roe vs. Wade is also still highly controversial. The due process clause, it seems, is going to be a topic of debate until the world is politically correct.
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the Fourteenth Amendment. Westport: Praeger, 1997. 2-5;34; 39; 123-125; 252-253.
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James, Joseph B. The Ratification of the Fourteenth Amendment. Macon: Mercer
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Meyer, Hermime. History and Meaning of the Fourteenth Amendment. New York:
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Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial
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