Fourteenth Amendment: Defining Birthright Citizenship

The Fourteenth Amendment is one of the most important and consequential additions to the United States Constitution. Ratified in 1868, it defines American citizenship as belonging to "all persons born or naturalized in the United States" – i.e., 'birthright citizenship' – and guarantees "equal protection of the laws" and "due process" to all citizens. The amendment was drafted and implemented during the turbulent Reconstruction Era (circa 1863-1877) to protect the newly won liberties of the formerly enslaved. It remains highly relevant in US political discourse and is one of the most frequently litigated parts of the US Constitution. Background: Reconstructing a Nation With the end of the American Civil War came the abolition of slavery in the United States. The Emancipation Proclamation of 1863 had already freed the slaves in the rebellious South, while the Thirteenth Amendment – ratified by the requisite number of states in December 1865 – freed them everywhere else (with the notable exception of forced labor being retained as punishment for criminals). Millions of formerly enslaved people were liberated from their shackles and were, at least on paper, finally able to take control of their own destinies. But although the issue of slavery itself had been decided in the smoke and fire of the American Civil War, there was not yet a consensus about the place that freedmen and women would have within American society. Would they be counted as full citizens? Would they be allowed to vote? US President Abraham Lincoln knew that the country had to grapple with these questions before the scars of war and sectional division could ever truly be healed. To this end, he and the antislavery Republican Party established the Freedmen's Bureau in early 1865. The bureau was a federal agency responsible for helping formerly enslaved people make the transition to freedom; agents helped impoverished freedpeople secure supplies and access to education, and even made plans to provide them with farmlands that had been confiscated from ex-Confederates – this plan became the basis for the 'forty acres and a mule' slogan. With the Freedmen's Bureau working to help freedpeople take advantage of their freedoms, Lincoln next turned to the question of their liberties, including suffrage. On 11 April 1865, shortly after the Confederate surrender at Appomattox, he gave a speech voicing his support for the enfranchisement of Black Americans, or at least those who had served in the Union Army during the war. But whether he would have followed through on this promise can never be known, as only a few days later, he was dead, felled by an assassin's bullet. Lincoln's successor, Andrew Johnson, was a less capable politician. A rough-spun Democrat from Tennessee, Johnson was less interested in securing the rights of Black Americans than he was in ending Reconstruction as quickly as possible. To this end, he granted amnesty to most ex-Confederates and gave them back much of their confiscated lands, thereby thwarting the Freedmen's Bureau's plans to give these lands to formerly enslaved people. Indeed, Johnson derailed many of the bureau's efforts and even vetoed the Freedmen's Bureau Bills, which would have done much to aid freedpeople throughout the South. Johnson's policies – a phase known as 'Presidential Reconstruction' – emboldened the defeated South to reclaim much of the power it had lost. The former Confederate States returned many of their old leaders to office and implemented the 'Black Codes,' discriminatory legislative policies that restricted the freedoms and civil liberties of Black Americans. When Congress reconvened, the most fervent advocates for the Union and for Black liberties – known as Radical Republicans – were horrified that Johnson had endangered Reconstruction by allowing the old slave-holding aristocracy to reclaim some of its authority. Congressional Debate When the Republican-controlled Congress convened in late 1865, members scrambled to counter Johnson and the rising Southern power. They refused to admit newly elected Southern congressmen to Congress, buying time to find some way to enshrine their gains from the Civil War into the Constitution, beyond the reach of the president and his allies. In January alone, no fewer than 70 constitutional amendments were introduced, each trying to wrestle with the complicated issues of Black liberties and Reconstruction. One of the major problems was that of representation. Prior to the war, the Southern states had counted three-fifths of their enslaved populations towards their congressional representation; they had, therefore, been able to boost their political power by exploiting their large enslaved populations, who, of course, had been unable to vote or participate in the political process. Now, with slavery over, the Southern states could count their entire population of freedmen. But since, in most cases, freedmen were still unable to vote, the South would still be claiming congressional representation disproportionate to its voting population. This would greatly enhance Southern influence in both Congress and the Electoral College; one Republican congressman warned that if nothing were done to remedy the situation, then "unrepentant...traitors" would seize control of the federal government and do everything in their power to reverse the trajectory of Reconstruction (quoted in Foner, 252). Upon considering this problem, the Joint Committee on Reconstruction came up with a solution. In late January 1866, it proposed an amendment that would penalize any state that tried to prevent male citizens from voting by proportionately shrinking that state's congressional representation. The amendment passed in the House of Representatives but failed in the Senate, where it was opposed not only by Democrats but also by Radical Republicans who believed it did not go far enough in protecting the rights of freedmen. Senator Charles Sumner of Massachusetts, one of the leading radical voices in Congress, voted against the amendment because it offered few real protections to Black voters; hypothetically, a large state could still restrict Black suffrage if it thought it was worth it to lose a bit of representation. Additionally, Sumner was not willing to compromise on his principles, stating his wish that "the day of compromise with wrong had passed forever" and proclaiming that "a moral principle cannot be compromised" (quoted in Sinha, 90). In his speech opposing the amendment, Sumner presented petitions from revered abolitionists like Frederick Douglass, who shared his doubts. Many Republicans in the House were displeased that a man as influential as Sumner had split with them. Thaddeus Stevens, perhaps the leading Radical Republican in the House, condemned Sumner and the other "self-righteous Republicans" for siding with the "unrighteous copperheads." Stevens agreed that the amendment was not perfect but argued that compromises had to be made, since they lived "among men and not among angels" (quoted in Sinha, 91). Still, once the amendment failed to get the necessary two-thirds majority votes in the Senate, there was nothing that House Republicans like Stevens could do except return to the drawing board. It was, to be sure, a tense time. "The President has gone over to the enemy," one Republican congressman glumly wrote, "and our friends are all split up among themselves" (quoted in Foner, 253). Everyone knew that if the Republicans could not propose an agreeable amendment by the upcoming midterm elections, they could lose control of Congress and lose the upper hand in the battle for Reconstruction. With this understanding, the Joint Committee proposed a new amendment in late April, one that it hoped would be more comprehensive in protecting liberties and would therefore be more palatable to their radical colleagues in the Senate. The Amendment The primary drafter of the document that would become the Fourteenth Amendment was Ohio Congressman John A. Bingham, who had already won national renown by prosecuting the conspirators behind the assassination of Abraham Lincoln. Bingham was concerned that certain states would try to deny citizenship to Black Americans and, further, would try to deprive them of the liberties guaranteed in the Bill of Rights. Bingham and his collaborators preempted this in the first section of the new amendment, in which they defined an American citizen as any person "born or naturalized in the United States." Furthermore, all citizens were entitled to equality before the law, and no state could make or enforce any law that could deprive citizens of their liberties "without due process." Scholars such as Manisha Sinha have emphasized the importance of Bingham's wording here, as he uses the word "person" when referring to citizens, rather than the word "male." This purposeful choice of words would later help marginalized groups, like women and LGBTQ+ people, claim equality before the law. Additionally, by defining American citizenship to include anyone born on US soil – birthright citizenship – Bingham and his allies opened the door for children of immigrants to receive the full rights and privileges enshrined in the Constitution. The second section of the Fourteenth Amendment ended the Three-Fifths clause for good, and stipulated that all persons would be counted for representational purposes, excluding "Indians not taxed," meaning Native Americans confined to reservations. If any state should try to prevent or restrict any group of adult male citizens from voting, then that state would be penalized by losing a proportional amount of representation in Congress. It must be noted, however, that this penalty has rarely been invoked, even when Southern states later openly flaunted the Fourteenth Amendment by disenfranchising Black men during the era of Jim Crow. The amendment's third section sought to prevent ex-Confederates from reaching positions of power. It decreed that any person who had rebelled against the United States after taking an oath of loyalty to the Constitution would be forbidden from holding office again. However, Congress could override this restriction on an individual basis with a two-thirds vote. In an earlier draft, Bingham and his collaborators had tried to prevent ex-rebels from voting at all, but this was ultimately stricken from the final amendment. The punishment for ex-Confederate leaders, therefore, amounted to little more than a slap on the wrist. "Never," writes Sinha, "have traitors felt the hand of law so lightly" (93). The fourth section upheld the payment of the US national debt but prohibited the payment of debt that had been taken on by the Confederacy. The fifth and final section empowered Congress to enforce the amendment with "appropriate legislation." Once the amendment had been completed, it was quickly approved by both houses of Congress on 13 June 1866. Secretary of State William H. Seward then sent it off to the states for ratification. The Text The full text of the Fourteenth Amendment is transcribed below: Section 1: 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. Section 2: 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. Section 3: 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. Section 4: 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. Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Aftermath The Fourteenth Amendment was perhaps the most significant amendment to the Constitution after the Bill of Rights, and was among the crowning achievements of 'Radical Reconstruction.' It enshrined the concepts of 'birthright citizenship' and 'equality before the law' in the Constitution, ideas that would have long-lasting consequences throughout US history – indeed, the first section of the Fourteenth Amendment, where both these concepts are laid out, is among the most litigated parts of the Constitution. It formed the basis of some of the most important US Supreme Court decisions including Brown v. Board of Education (1954), which ended racial segregation in public schools; Loving v. Virginia (1967), which ended bans on interracial marriage; Roe v. Wade (1973), which guaranteed federal protection of access to abortions until it was overturned in 2022; as well as Obergefell v. Hodges (2015), which legalized same-sex marriage. But, in 1866, all this was still in the future – Radical Republicans still had to worry about getting the amendment ratified by the states. In this, as in pretty much everything else, they were opposed by President Johnson, as well as Democrats and the former Confederate States. Detractors claimed that, by forcing states to adhere to a set of standards, the amendment increased federal power at the expense of states' rights. Bingham, however, countered that "it takes from no State any right…but it imposes a limitation upon the States to correct their abuses of power" (quoted in Foner, 259). Still, the former Confederate States remained defiant; except for Tennessee, their state legislatures refused to ratify the amendment. Radical Republicans refused to be cowed. In 1867, after retaining control of Congress in the midterm elections, they passed the Reconstruction Acts, which established martial law in the Southern states and prohibited their re-entry into the Union until they ratified the Fourteenth Amendment (this did not apply to Tennessee, however, which had been readmitted into the Union in 1866). Although some states held out for decades – indeed, Kentucky became the last state to ratify the amendment in March 1976 – the Fourteenth Amendment was ratified by the requisite number of 28 states and was adopted into the US Constitution on 9 July 1868. This was not only a key event in the history of Reconstruction but also a watershed moment in the constitutional history of the United States.