2.3 History and Analysis of the 14th Amendment-Issues
1 Legal Analysis
The Fourteenth Amendment was one of three amendments to the Constitution adopted after the Civil War to guarantee black rights. The Thirteenth Amendment abolished slavery, the Fourteenth granted citizenship to people once enslaved, and the Fifteenth guaranteed black men the right to vote. The Fourteenth Amendment was passed by Congress in June 1866 and ratified by the states in 1868. The Radical Republicans had been battling with Andrew Johnson for control of Reconstruction. Johnson was in favor of leaving the future of black people in the hands of white Southerners. The Radical Republicans disagreed, and they won. The amendment was designed to grant citizenship to and protect the civil liberties of recently freed slaves. It did this by granting citizenship to anyone born in the United States and prohibiting states from denying or abridging the privileges or immunities of citizens of the U.S., depriving any person of his life, liberty, or property without due process of law, or denying to any person within their jurisdiction the equal protection of the laws. ("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.") With the exception of Tennessee, the Southern states refused to ratify the Fourteenth Amendment. The Republicans then passed the Reconstruction Act of 1867, which set the conditions the Southern states had to accept before they could be readmitted to the union, including ratification of the 14th Amendment. Once the amendments were passed, they were legally binding in the states and enabled the federal government to invalidate contrary local actions.
Barron v. Baltimore (1833)- Bill of Rights does not apply to the states
Dred Scott v. Sanford (1857) Citizenship is denied to blacks.
"The Court concluded that black persons were not entitled to the privileges and immunities of citizens, which the Court took broadly to include the rights to speak, bear arms, assemble, and travel freely."
"...For if they [blacks] were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."
2 Contents of the 14th
Citizenship Clause:
The protection provided by the constitutional definition of citizenship came in the aftermath of the
Civil War and in direct response to the U.S. Supreme Court decision in Dred Scott v. Sanford,
which sought to deny full citizenship to African Americans. The 14th Amendment was adopted to
overrule this decision and to put citizenship above the preferences and prejudices of any politician
or era, and to ensure due process and equal protection of the law regardless of race, color or
ancestry.
Privileges and Immunities Clause:
It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. (Paul v. Virginia 1869)
Due Process Clause:
Procedural Due Process -This clause requires that the federal government not deprive any person of "life, liberty or property without the due process of law.” The aim of the Doctrine of Procedural Due Process is to assure fair procedures when the government imposes a burden upon an individual. These processes must not abridge an individual's right in respect to life, liberty or property. The procedures used by the government must be fundamentally fair.
Substantive Due Process-This clause seeks to keep an individual free in his personal life from the intrusion of the laws of government. Government laws must not abridge upon the life, liberty, or property on an individual without just cause. A state may not pass a law that violates an individual's rights.
"In a line of cases following the end of Reconstruction, the Supreme Court had built a doctrinal superstructure conducive to modern laissez-faire industrialism and hostile to the claims of laborers and the indigent. Legal concepts like substantive due process had exalted private property and freedom of contract while limiting the power of government to regulate or otherwise interfere with entrepreneurship." The rights of property and contract Links to an external site. were defined to be absolute and could not be regulated by the government.
Equal Protection Clause:
Considered textually, the Privileges or Immunities Clause, the Equal Protection Clause, and the Due Process Clause of the Fourteenth Amendment can be read to form a coherent triad. A state's legislature could not deny to any citizen within its jurisdiction any privilege or immunity (however defined). Once a law was validly passed, the state or its agents could not arbitrarily enforce it against any person within the state's jurisdiction without violating the Equal Protection Clause.
Because of the inequality imposed by the Southern Black Codes, Congress enacted the Civil Rights Act of 1866
Links to an external site.. This Act provided that all those born in the United States were citizens (contrary to the Supreme Court's 1857 decision in Dred Scott v. Sandford
Links to an external site.), and required that "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."
Links to an external site.
Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution was one factor that led Congress to begin to draft and debate what would become the Equal Protection Clause of the Fourteenth Amendment which would become binding upon the states.
3 Supreme Court Interpretations
The evolution of the Bill of Rights and their application to the states
Barron v. Baltimore (1833)- The Bill of Rights are not incorporated to the states.
Dred Scott v. Sanford (1856)- Removes the right of citizenship from both free blacks and slaves.
Civil War-The victory of the North requires a change in the legal structure of federalism in order to implement the "national" view of rights and liberties. Even though the North wins the war, the precedents of the Supreme Court still stand. The law must be changed in order to implement the will of the North.
14th Amendment-The passage of the 14th Amendment reverses Barron and Dred Scott and constructs a constitutional authority over the states. The creation of the Citizenship Clause, Privileges and Immunities Clause, Due Process Clause, and Equal Protection Clause allows the National government to promote, establish, and implement equal rights in the states.
The Slaughter-House Cases (1873) Links to an external site. - The Supreme Court refused to fully implement the Privileges and Immunities Clause of the 14th to the states.
Gitlow v. New York (1925)- The Supreme Court finds that the Freedom of Speech is a Fundamental Right and must be protected... even though Gitlow's conviction was upheld. In Gitlow, the Supreme Court begins the Theory of Incorporation.
[W]e may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental rights and “liberties” protected by the Fourteenth Amendment from impairment by Congress.
Palko v. Connecticut (1937)-Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death. Palko appealed to the Supreme Court that he has suffered "Double Jeopardy" and could not be put to death. The Supreme Court ruled that yes, ... some rights are fundamental and MUST be incorporated into the states...but double jeopardy was not a fundamental right. Palko was put to death.
4 Incorporation and the Palko Test
Justice Cardozo and the Palko Test:
The Supreme Court faced the question of which Federal rights are “absorbed” in the Due Process Clause. (Which rights are fundamental rights- what is the test we must use?)
A Right is absorbed if and only if it is “implicit in the concept of ordered liberty”
or
“so rooted in the traditions and conscience of our people as to be ranked as fundamental”
or
such that “a fair and enlightened system of justice would be impossible without [it].”
When a right or procedure meets the standard of the Palko Test, it must be incorporated into the states.
The Palko Test is used to implement Selective Incorporation. If a right meets the Palko Test, then it must be incorporated into the states as fundamental to ordered liberty.
Under the Theory of Total Incorporation, all of the rights of the Bill of Rights are incorporated into the states- See Justice Hugo Black
Selective versus Total Incorporation
In the 1940s and 1960s the Supreme Court gradually issued a series of decisions incorporating several of the specific rights from the Bill of Rights, so as to be binding upon the States. A dissenting school of thought championed by Justice Links to an external site. Hugo Black Links to an external site. supported that incorporation of specific rights, but urged incorporation of all specific rights instead of just some of them. Black was for so-called mechanical incorporation, or total incorporation, of Amendments 1 through 8 of the Bill of Rights (Amendments 9 and 10 being patently connected to the powers of the federal government alone). Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the first eight amendments, but he did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights Links to an external site." that might be based on the Ninth Amendment Links to an external site.. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions. Justice Black felt that the Fourteenth Amendment was designed to apply the first eight amendments from the Bill of Rights to the states, as he expressed in his dissenting opinion in Adamson v. California Links to an external site.. This view was again expressed by Black in his concurrence in Duncan v. Louisiana Links to an external site.: "'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States."