The Fourteenth Amendment
—Chrissie

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           The Fourteenth Amendment is a work of compromise. Unlike the Thirteenth, which had a very straightforward purpose, the Fourteenth was crafted to specifically handle issues stemming from the Civil War and its conclusion. Slavery had been outlawed, but how did the former slaves fit into American society? Were they citizens? And if so, how was that status established? And would they be allowed to vote? There was also the question of the former Confederates: had they forfeited their rights by taking up arms against their government? These issues and others were addressed by the Joint Committee on Reconstruction, a group of fifteen appointed from the House and Senate at the beginning of the 1866 Congressional session.

            The first issue tackled by the Committee was overturning the Three-Fifths Clause, an element of the original Constitution that had determined representation of any state by counting all free people and three-fifths of enslaved people.  With the abolition of slavery, representation in the House would now be determined by a census of all people in the state. This had the potential to give the former Confederates an undue influence, as counting everyone would see a massive increase in population to be represented in these states, if African American men were not granted the vote. However, adding Black suffrage to the amendment seemed a sure way to prevent its being ratified, most of the northern states did not yet have Black suffrage. A compromise was found in creating a system whereby a state would be penalized by losing representation in the House if they limited voters based on “race or color.” The obvious issue, that reasons other than race or color could be found to deny people the right to vote, was debated at the time and proved correct in the decades to come. Despite this, the amendment, only dealing with representation and the vote, was presented to the House and passed. It did not in the Senate. Charles Sumner (R-MA) led the opposition, calling it insufficient. Anything less than full equality of citizenship was an unacceptable compromise.

            In the meantime, the Civil Rights Act of 1866 was being debated in Congress. It made specific the rights of citizens and, essentially, designated all free persons in the United States as citizens, excepting members of the sovereign Indian nations within the country, most of whom did not want to give up tribal sovereignty, and foreigners simply residing in the US. This functionally establishes that anyone born on American soil is an American citizen, irrelevant of racial background. Having established this, there could be no legal discrimination conducted by any government, federal, state, or local, against citizens of the United States, who were all held to be equal before the law. On paper, this meant full civil equality, with the integration of schools, juries, the military ,and all public services; full social equality, including the legalization of interracial marriages; and full political equality, from the vote to running for and holding office. The reality did not hold up to the writing, a law could be written without racially discriminative language but be applied unequally and with racial categories in mind. The Act attempted to prevent that by making the Federal government responsible for its enforcement, taking that out of the hands of state and local officials, who were deemed more likely to discriminate. It passed both the House and the Senate, but was vetoed by President Andrew Johnson, then passed again over his veto. All of this convinced those working toward full equality that it needed to be part of the Constitution, not simply a law that would be subject to repeal when political power changed hands.

            The citizenship issue was made the first part of the Fourteenth Amendment, pushing the issue of representation to Section Two. Section One 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.

The “Privileges or Immunities” clause was extensively debated; it purposefully used language found elsewhere in the Constitution and founding documents, which also made it vague. Using precedent created by an 1823 circuit court decision one of its authors, Senator Jacob Howard (R-MI), argued that these are the rights guaranteed by the Bill of Rights. This was a change away from the intention of the Bill of Rights, which was to limit Federal power, toward a more modern understanding, which sees these as immutable guarantees. It outlawed government activity at any level that could restrict any person’s rights as enumerated in the Constitution. This fits well with the Equal Protection clause that follows, as it outlawed actions by private citizens or organizations that restricted equality of citizenship, for example, the use of violence to intimidate voters.

            The question of representation and the vote is handled in Section Two, much as it had been worked out previously.

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.

By basing the reduction of Congressional representation on a state denying males over the age of 21 their right to vote, the issue of how to include Blacks without allowing loopholes for racially-based disenfranchisement was seemingly solved. Seemingly because it still allowed the states a great deal of power in deciding who had the right to vote and, more importantly, the clause was never enforced, even in the face of the blatant violations of the Jim Crow years. While the amendment did not specifically give Black men the vote it did specify that there would be consequences only for preventing men from voting, not women. The specific use of the word “male” was a long-fought compromise that immediately saw pushback, particularly from women who had been involved in abolitionist groups who had hoped and expected that they would get the vote alongside Black men, if not before. Women’s suffrage would not be settled for another six decades, with the passage of the Nineteenth Amendment in 1920.

            Section Three dealt with the involvement of recent Confederates in postwar governance. It reads:

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.

It was obvious that those who had risen up in arms against their government could not be allowed to have political power. Many senators and congressmen thought this was too lenient as a punishment for treason, but it served an additional purpose: to ensure the former Confederate states would self-police in their choices of leadership. If those involved in the rebellion could not be in power, those who were not would be and they were far more likely to create and maintain a government that put into effect the equality now required by the Constitution. It was believed to be very much of the moment and, until recently, had been essentially forgotten. In the years between 1865 and 2021, no one who had “engaged in insurrection or rebellion” against the United States had subsequently tried to hold a major public office. It is worth noting that even though the authors of the Fourteenth did not think it would be relevant in the future, it did not specify “the recent rebellion” or “members of the Confederacy,” it was left open to assure that if it were needed it could be invoked and enforced.

            Section Four was also of the moment, the question of whether the debt incurred by the federal government in conducting the war would be paid back. It reads:

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.

So, those who provided money to help put down the rebellion would have their loans paid back, those who had provided money for the Confederacy were out of luck. It also makes clear that slaveholders would not be compensated for the loss of their human property. This was, like the previous section, mostly forgotten until the debt ceiling discussion of 2011, when it was invoked in opposition to those who would see the US government default on its debts. A compromise was reached and so the question of whether not paying federal debt would violate the Constitution has not yet been answered.

The last section of the Amendment is the same as the Thirteenth, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” It was still a radical idea that the federal government would exercise this level of power, but was not nearly as radical as the sections above it.

            The ratification of the Fourteenth overlapped with the mid-term elections of 1866, which ended with the Republicans having more power in the Senate and Congress and their takeover of Reconstruction, in part as a reaction to the debates around the amendment. Johnson had campaigned for southern Democrats with the idea of preventing the amendment from ever being ratified. As Congressional Reconstruction took over, the former Confederate states who had been brought back into the Union were now pushed back and told they could not rejoin until they’d written new constitutions and set up new governments which enshrined the new ideals of equality. By the summer of 1868, enough of the southern states had been readmitted and ratified the Fourteenth Amendment for it to be added to the Constitution.

One more issue remained, to be dealt with in the Fifteenth Amendment: ensuring the vote for Black men.