The Fourteenth Amendment and its early gutting

The Fourteenth Amendment, ratified July 9, 1868, established birthright citizenship, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. Its drafters intended it to constitutionalize the Civil Rights Act of 1866 and bind the states to the federal protection of freedpeople.

Within five years the Supreme Court began draining it of force. The Slaughter-House Cases (1873) read the Privileges or Immunities Clause so narrowly that it has never been the operative tool the drafters intended. United States v. Cruikshank (1876) overturned federal convictions for the Colfax Massacre by holding that the amendment restrained only state — not private — action.

Eric Foner argues in ``The Second Founding`` that the post-1873 Court neutered the structural intent of the amendment for nearly a century, until Brown (1954) and the 1960s civil-rights litigation campaigns reanimated it through the Equal Protection Clause.

The Fourteenth Amendment was ratified on July 9, 1868, three years after the Civil War ended and two years after Congress had passed the Civil Rights Act of 1866. The Amendment was drafted by the Joint Committee on Reconstruction and submitted to the states under unusual procedural conditions: ratification by the former Confederate states was made a condition of those states' readmission to congressional representation. The procedural irregularity of the ratification has been the subject of occasional academic discussion but has never been the basis of judicial challenge to the Amendment's validity.

The Amendment has five sections. Section 1 contains the four principal substantive provisions: the Citizenship Clause (all persons born or naturalized in the United States are citizens of the United States and of the state in which they reside), the Privileges or Immunities Clause (no state shall abridge the privileges or immunities of citizens of the United States), the Due Process Clause (no state shall deprive any person of life, liberty, or property without due process of law), and the Equal Protection Clause (no state shall deny to any person within its jurisdiction the equal protection of the laws). Section 2 reduces a state's congressional representation in proportion to the share of its male population denied the right to vote. Section 3 disqualifies former Confederate officials from holding federal office. Section 4 declares the Union war debt valid and the Confederate war debt void. Section 5 grants Congress the power to enforce the Amendment by appropriate legislation.

The Citizenship Clause was a direct repudiation of Dred Scott v. Sandford (1857). The Clause established that birth on United States soil — subject to the narrow exception for children born to foreign diplomats or to enemy occupying forces — confers United States citizenship as a matter of constitutional right. The principal subsequent litigation on the Clause has concerned its application to children born in the United States to non-citizen parents. United States v. Wong Kim Ark (1898) held that the Clause extends to children born in the United States to non-citizen Chinese parents, establishing the birthright-citizenship rule that has governed the Clause ever since. Modern debates about birthright citizenship and the Fourteenth Amendment continue to reference the Wong Kim Ark framework as the authoritative reading of the Clause.

The Equal Protection Clause has had the longest and most consequential subsequent litigation history. The Slaughter-House Cases (1873) narrowly construed the Privileges or Immunities Clause, effectively reading it out of the Amendment and shifting the protective work to the Due Process and Equal Protection Clauses. The Civil Rights Cases (1883) held that Congress's Section 5 enforcement authority extended to state action but not to private discriminatory conduct, a holding that constrained federal civil-rights legislation for nearly a century until the Civil Rights Act of 1964 was upheld under the Commerce Clause rather than under Section 5. Plessy v. Ferguson (1896) held that the Equal Protection Clause did not prohibit racial segregation in public accommodations so long as the segregated facilities were formally equal — a reading that governed Equal Protection doctrine until Brown v. Board of Education (1954).

The modern strict-scrutiny framework for racial classifications under the Equal Protection Clause emerged in stages across the twentieth century. Korematsu v. United States (1944) first articulated the strict-scrutiny standard as applied to racial classifications, though the Court upheld the wartime internment of Japanese Americans under that standard. Loving v. Virginia (1967) struck down anti-miscegenation statutes under strict scrutiny. Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), Fisher v. University of Texas at Austin (2013, 2016), and Students for Fair Admissions v. Harvard (2023) developed the doctrine of race-conscious admissions, with the most recent case substantially constraining the permissible use of race in selective university admissions.

The Section 5 enforcement authority of the Fourteenth Amendment is the constitutional basis for substantial portions of the modern civil-rights statutes. The Voting Rights Act of 1965 was originally upheld under Section 2 of the Fifteenth Amendment but is also defensible under Section 5 of the Fourteenth. The Americans with Disabilities Act of 1990 was upheld under Section 5 as applied to state employers in Tennessee v. Lane (2004). The Civil Rights Act of 1964's public-accommodations title was upheld under the Commerce Clause in Heart of Atlanta Motel v. United States (1964) rather than under Section 5, a doctrinal choice that has had subsequent consequences for the scope of federal civil-rights legislation. The Fourteenth Amendment remains the principal constitutional foundation for federal equal-protection litigation; its operational reach continues to be the subject of substantial ongoing constitutional development.

The Section 5 enforcement authority of the Fourteenth Amendment has been the subject of substantial subsequent constitutional litigation. The Supreme Court's decisions in City of Boerne v. Flores (1997), Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999), Kimel v. Florida Board of Regents (2000), Board of Trustees of the University of Alabama v. Garrett (2001), Nevada Department of Human Resources v. Hibbs (2003), Tennessee v. Lane (2004), and United States v. Georgia (2006) have elaborated the framework for evaluating Congress's Section 5 enforcement authority. The principal doctrinal question is whether Section 5 legislation is 'congruent and proportional' to the constitutional violation it is designed to remedy. The framework has produced varied outcomes across the affected federal civil-rights statutes; the Family and Medical Leave Act's family-care provision was upheld in Hibbs, the Americans with Disabilities Act's accessibility provision was upheld in Lane, but other federal civil-rights statutes have been more narrowly construed.

The Privileges or Immunities Clause has been the subject of substantial recent academic and judicial reconsideration. The Slaughter-House Cases' 1873 narrow construction of the clause has been criticized by constitutional scholars across the political spectrum as inconsistent with the original understanding of the Fourteenth Amendment's framers. Justice Thomas's concurring opinion in McDonald v. Chicago (2010) argued for reviving the clause as the principal vehicle for incorporation of the Bill of Rights against the states. The Court has not yet adopted Justice Thomas's framework, but the Privileges or Immunities Clause has been the subject of substantial subsequent litigation activity, with cases proposing the clause's revival in various civil-rights contexts continuing to reach the federal courts.