The Fourteenth Amendment Changes America But Only After An 86 Year Delay

The 14th Amendment Changes America but Only After an 86 Year Delay

The Fourteenth Amendment adopted in 1868 was enacted to once and for all create an environment of equality in the United States especially in regards to the newly freed slaves. Its effects briefly took hold but quickly receded after the 1876 Presidential election.The North and the Republicans, weary from war and conflict, made a "corrupt bargain" by giving the South full autonomy within their states in exchange for the disputed electoral votes necessary to elect their candidate Rutherford Hayes as President.

The United States Supreme Court almost fully complied during the ensuing years giving Southern states a virtual "blank check" to treat Southern Blacks as they so chose. All of this changed in 1954 when the Court used the "Equal Protection" clause of this Amendment to rule against segregated schools in the Brown v Board of Education of Topeka. This ruling struck down an earlier ruling that allowed the segregation of schools as long as they were "separate but equal". From this point on, the Supreme Court utilized the Fourteenth Amendment widely to provide civil rights for all groups as well as on other prominent issues of the day.

I will begin this Hub by briefly explaining its five sections. Then I will describe how the Amendment was used and ignored up until the Brown decision. This will be followed by my description of the Fourteenth Amendment's amazing renaissance beginning in 1954 and continuing through to the last Court term. Finally I will explain why I think the Fourteenth Amendment has and will continue to prove to be the tool that has brought an enormous breakthrough in increasing and ensuring liberty and equality for all peoples in our country and will continue to do so.

Section 1 of the Fourteenth Amendment states that all people born or naturalized in the United States are citizens of the United States. This section was written to ensure that the recently freed slaves could not be denied citizenship for any reason. Our current controversial issue pertaining to this section concerns children born in the U.S. of undocumented parents. Many Conservatives argue that this section should not apply to these children but this opinion is in the minority within the legal community.

The Due Process clause of this section says that no states may deprive any of its citizens of life, liberty, and property without the due process of law. This clause is almost identical to one in the Fifth Amendment. That clause only applied to the federal government while the Fourteenth Amendment extended this restriction to all state governments.

The Equal Protection clause included within this section states that all governmental jurisdictions must provide equal protection under the law to all of its citizens. This clause was included to help ensure that the Southern states would not discriminate against the newly freed Black slaves.

Section 2 has two purposes. The first is to correct the original Constitution that allowed slave states to count their slaves as 2/3 of a person for purposes of representation and electoral votes. Now every man, women still had not acquired the right to vote, who were 21 years of age or more were counted as a full person for purposes of representation. Secondly, this section states that a state will lose full votes for each man they deny these voting rights to.

Section 3 simply disallowed any person who served in an insurrection against the United States to be elected or serve in any capacity in any political office or military rank.

Section 4 states that the public debt of the U.S. incurred fighting the insurrection must be honored. It further states that any debt incurred by and used for purposes of the insurrection were forbidden to be paid off by the federal government or any state.

Section 5 gave the United States Congress the power to enforce the Fourteenth Amendment through all appropriate legislation.

The Fourteenth Amendment was adopted in 1868 largely to protect the rights of the newly freed Black slaves. Northern Republicans knew that the recently defeated South was very bitter about this defeat and that they were determined to return their society to the White dominance that existed before the war as fully as they possibly could.

This Amendment along with the threat of force from Northern troops helped to allow Blacks in the South to flourish even in the face of tremendous hostility from Southern Whites during the Reconstruction period. This all changed after the disputed 1876 Presidential election albeit slowly and gradually.

The Republican party as well as the public at large were very weary from war and the subsequent strife of Reconstruction. The Republicans also feared losing the Presidency and their firm grip on power. The two parties secretly agreed to allow Republican Rutherford Hayes to secure the disputed Electoral College votes he needed to win the 1876 election.This was covertly done in exchange for the removal of Union troops from the South as an occupying force. They also effectively agreed to allow the South to govern as they saw fit short of reintroducing slavery.

The two areas of Section 1 of the Fourteenth Amendment that were either rarely enforced or enforced unevenly after the Reconstruction period were the Due Process and Equal Protection clauses. I will be concentrating on these two for the remainder of this Hub because they were the main tools the writers of this Amendment included to ensure that the rights of Blacks were protected as well as the rights of the rest of the American citizenry.

The Due Process clause protects citizens from unfair interference from all state governments just as the Fifth Amendment does so against the federal government. Unfortunately the Supreme Court decided to rule very narrowly when interpreting this clause after it was adopted.

The Supreme Court initially applied this clause only to protect private contracts from government interference. The 1897 Allgeyer v Louisiana decision was the first example of the Court protecting companies from government regulation. The Lochner v New York decision in 1905 enshrined this course of decisions for decades by striking down a maximum hours allowed to work regulation. They argued that New York did not give these companies due process. Ironically they had failed to apply this principle to individuals and continued to fail to do so for many years thereafter.

The Equal Protection clause was the other main part of this Amendment that was instituted to protect newly freed Blacks in the South from White Southerners who were attempting to make them once again subservient to them within their society. This clause was a powerful tool for equality during Reconstruction and for some years later. The clause was expanded and reinforced in the 1896 Wong Wing v United States decision which extended this clause to Chinese Americans and every human being within the United States.

This clause took its first major hit in the 1897 Plessy v Ferguson case. The Supreme Court argued that segregated schools were allowed to operate as segregated as long as they had similar facilities. This judicial rationale is famously known as "separate but equal". The 1908 Berea v Kentucky decision went further and allowed states to prohibit the integration of colleges.

This gross distortion of the Equal Protection clause remained in effect until the Court ruled in the 1954 Brown v Board of Education of Topeka that segregated schools are inherently and practically unequal and therefore unconstitutional. This decision proved to be the renaissance of this clause and has widely been used for many causes and decisions since. In that same year, the Court ruled in the Hernandez v Texas case that the Equal Protection clause applies to all racial and ethnic classes and not just for African Americans.

Affirmative Action programs around the country, most of which have been used to expand participation of Blacks in those groups, have ironically become severely limited in their use by way of this same clause. These limitations began with the 1978 Regents of the University of California v Bakke case. This decision struck down racial quotas but continued to allow race to be used as a consideration for admissions as long as it was one of many factors. The Gratz and the Grutter v Bollinger 2003 decisions upheld this stance and reinforced it.

The Supreme Court most recently and with much fanfare ruled that same sex marriage was constitutional and could not be prohibited by governments in the 2015 Obergefell v Hodges case. They used the Equal Protection clause as their main rationale proving that this clause has come a long way since Reconstruction.

The Due Process clause did not receive its renaissance until the late 1930s during the Franklin Roosevelt administration. The Supreme Court had ruled against many of his "New Deal" programs and Roosevelt tried to remedy this by "packing the Court" with added members more in tune with his policies. This action failed miserably and was seen as a naked power move.

Still, many Supreme Court members recognized that the winds of reform were against them and several retired paving the way for a more liberal Court. They ruled against the earlier freedom of contract doctrine in the 1937 West Coast Hotel v Parrish case though not gutting it entirely. Most of the New Deal programs were allowed to stand after this point.

The 1960s ushered in a more wide ranging use of this clause including the "right to privacy" in the 1965 Griswold v Connecticut decision which overruled Connecticut's law criminalizing birth control. The 1973 Roe v Wade decision decriminalizing abortion over similar grounds is the most famous and controversial example of the Supreme Court's use of the Due Process clause to uphold the right to privacy.

The American Revolution documented by the Declaration of Independence and the United States Constitution promised liberty for its citizens but as we all know that promise was only for a select few at the outset. Slavery was ingrained in the Constitution though never explicitly mentioned. Congress was not allowed to abolish or amend the slave trade until 1808 though it could tax it. Three fifths of each slave could also be used to increase the legislative and electoral representation in the slave states.

Women in America did not receive the right to vote until the Nineteenth Amendment was ratified in 1920. In fact, only White men who owned property were allowed to participate in our nation's political system in most states when our Constitution was ratified. It took a massive and devastating Civil War to create the political atmosphere amenable to the creation of true liberty in the United States.

The Fourteenth Amendment was the instrument that Republican Congressional leaders used in 1868 to create and ensure liberty for all citizens in the United States. The Due Process clause prohibited states from interfering with any citizen's right to life, liberty, and property without due legal process. Now the states had to abide by the same restrictions that the federal government had to observe by way of the Fifth Amendment. Unfortunately it took many decades for this clause to fully take hold and fulfill its promise.

The Equal Protection clause enshrines the promise of full liberty for all U.S. citizens. Americans of any race, ethnicity, and background must be treated equally by all governments and before the law within the United States. This clause finally reached its true promise in the 1954 Brown decision and has continued to expand its scope and power. This was clearly demonstrated by way of the Supreme Court's decision this past term to legalize same sex marriage.

My belief and sincere hope is that the remarkable advances that the Fourteenth Amendment has engendered over the past sixty years will continue and grow. The promise of the new nation that emerged from the American Revolution regarding liberty, justice, and sound governance was powerful but has had many dark periods.

Slavery was the original sin of our republic but we as a nation have subjugated many different groups over the course of our history. Yet the trajectory for liberty and justice in our country has been ever higher and I believe the Fourteenth Amendment has been the most powerful tool that has enabled this growth in liberty, equality, and justice.

Make no mistake, we still have a long road to travel but the march of our history is on a very positive course. We must be vigilant and demand of our political leaders and our justice system that they continue on this path. This is the way that we can ensure we remain the beacon of liberty for the rest of the world best symbolized by the Statue of Liberty. I am very confident we will do so no matter the challenges that fall into our path.

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Comments 17 comments

bradmasterOCcal profile image

bradmasterOCcal 17 months ago from Orange County California

I disagree with your Opinions.

The 14th Amendment is vague and ambiguous, and if it did the things you claim, there wouldn't be a need for the 15th or 19th amendments. The right to vote was clearly in the constitution, but the constitution didn't treat slaves.

The Supreme Court has never made a good decision, and the SC itself was not detailed in the Constitutions. At one time, FDR had 15 justices, and the 5-4 majority decision invalidates the expertize, and experience of the other 4 justices. These decisions don't resolve the issue, they just make a decision.

Same Sex marriage like the ACA were bad SC decisions that didn't really follow the law, so they must have been politically motivated.

Same Sex Marriage didn't resolve whether it was a preference or something irresistible that was the cause of homosexuality. They also didn't provide for the moment life begins in Roe v Wade.

So a mere preference for a deviant action is grounds for forcing same sex marriages into traditional marriage that has nothing in common with it. If there was evidence that it was more than a mere preference, then the SC would have had judicial notice for these facts. But none exists, and there is no judicial notice.

The Supreme Court and the 14th amendment is useless, and both are being used way outside of their limits. The SC didn't Resolve the Abortion Issue or the Same Sex Marriage, it just made bad decisions, but the issues are still very much alive.

bradmasterOCcal profile image

bradmasterOCcal 17 months ago from Orange County California

BTW, you are right the 14th amendment is changing America, but the problem is that it is not a change for the good.

Ericdierker profile image

Ericdierker 17 months ago from Spring Valley, CA. U.S.A.

Very interesting. Sometimes it is hard to tell if a step is taking us forward, sideways or perhaps backwards. Too bad we don't have a blueprint to follow.

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HSchneider 17 months ago from Parsippany, New Jersey Author

Thank you for your comments, Bradmaster. As I have argued with you in some prior Hubs, the Equal Protection clause was used allowing same sex marriage. If heterosexual marriage is legal, equal protection for homosexuals must follow. As I recall, your view on this point is that government has no role in marriage at all. This is a fair argument but I doubt there will be any support to get governments out of the marriage debate. Also I do not believe homosexuality is a mere preference for deviancy. I believe they are born with this tendency. Many have argued that Roe v Wade was a bad decision because the "right to privacy" was vaguely derived from the Due Process clause during the 1965 Griswold v Connecticut decision. I can see how many are against this view yet most people argue that they have a right to privacy. Also, no courts have overruled Roe V Wade or Griswold since.

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HSchneider 17 months ago from Parsippany, New Jersey Author

Bradmaster, I know you feel that the 14th Amendment is a disaster for America. I argue that it is being used to further our country to its promise of liberty, equality, and justice as I have outlined in this Hub.

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HSchneider 17 months ago from Parsippany, New Jersey Author

Thank you for your comments, Eric. I know you feel that the Court's ruling on same sex marriage was wrongly decided and their decisions on race and ethnicity have been positive. My view is that due to the Equal Protection clause same sex marriages must be performed by government. As for before God, that is being left up to churches and ultimately the afterlife.

bradmasterOCcal profile image

bradmasterOCcal 17 months ago from Orange County California

I have made my opinions, and conclusion in my hubs.

You have not made any compelling arguments to my comment here.


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HSchneider 17 months ago from Parsippany, New Jersey Author

Yes you have, Bradmaster. You have done so in detail and eloquently. I guess we can only agree to disagree.

adagio4639 profile image

adagio4639 17 months ago from Brattleboro Vermont

@bradmasterOCcal : "The 14th Amendment is vague and ambiguous, and if it did the things you claim, there wouldn't be a need for the 15th or 19th amendments. The right to vote was clearly in the constitution,"

The 14th is neither vague, nor ambiguous. It is however a thorn in the side of conservatives and always has been. The right to vote had always been reserved for white male property owners. Although the 14th gave all people born in the US, citizenship with all the rights of a citizen, it did not specifically address voting rights which obviously needed clarification, and that was clarified with the 15th. The 15th and then the 19th did that, much to the dismay of conservatives who fought against both amendments.

"The Supreme Court has never made a good decision, and the SC itself was not detailed in the Constitutions."

That's a subjective opinion on your part. When you don't like what they say, it's easy to say that they've never made a good decision. As for the SCOTUS not being detailed in the Constitution:

Article III:

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

What part of Article III are you not getting?

Lets face it; Conservatives don't like extending rights to people.They feel that if rights are extended to others, it somehow takes rights away from them.

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HSchneider 17 months ago from Parsippany, New Jersey Author

You have reinforced what I have written in this Hub very well, Adagio. The 14th Amendment has allowed the United States to live up its early promise in the Declaration of Independence and it corrected the initial bargains reached in the Constitution. Thank you for your comments.

adagio4639 profile image

adagio4639 17 months ago from Brattleboro Vermont

@bradmasterOCcal: "BTW, you are right the 14th amendment is changing America, but the problem is that it is not a change for the good."

Amazing. You criticize the 14th for being "vague and ambiguous" and then you toss out the word "good" which is completely vague and ambiguous. And YOU are the one that decides what is "good" for the rest of the country? I wasn't aware of that. "Good" is a subjective term. It's not absolute. What you think is good, doesn't necessarily meet the standards for what I may think is "good" or the majority of Americans think is good. In fact it just might fall way short of it. So the SCOTUS determines that. The narrow mind of the conservative is always breathtaking to me. I can't understand how they function on a day to day basis without looking for another crisis and somebody to scapegoat for their own failings as a human being.

adagio4639 profile image

adagio4639 17 months ago from Brattleboro Vermont


BTW... I wanted to compliment you on your thorough reading of the 14th. Nobody that I'm aware of on this forum has done that. There's a lot of hatred for that Amendment today because of the immigration issue. People argue about what to call a baby born in the US. Should we call them Anchor Babies? No. We should call them Americans according to the 14th Amendment.

adagio4639 profile image

adagio4639 17 months ago from Brattleboro Vermont

@Ericdierker: " Too bad we don't have a blueprint to follow."

??? We do. It's called The Constitution. You can apply logic to it pretty easily. Personally I'm of the school of thought that it's a "living document". Scalia would disagree.

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HSchneider 17 months ago from Parsippany, New Jersey Author

Thank you for your compliments, Adagio. The 14th Amendment was, in my opinion, a political and legislative work of genius. It was thwarted early on by the politics of the day but it has withstood the test of time to become a beacon of liberty and equality. I believed it needed a thorough analysis. I also totally concur with your analysis of the "anchor baby" issue. Critics simply want to re-write the Amendment to serve their political views.

adagio4639 profile image

adagio4639 17 months ago from Brattleboro Vermont

@HSchneider : "If heterosexual marriage is legal, equal protection for homosexuals must follow. "

This is a perfect example of the logic I was referring to. The only objection to this comes from a religious viewpoint, and we don't legislate religion in this country. So religion cannot be the criterion used to make a judgment here.

The first Amendment says; Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;.

First of all; the establishment clause does more than ban the federal government from establishing religion; it bars even laws respecting establishment. So we can't make laws respecting religion.

Secondly; an overlooked aspect of the free exercise clause is that it looks back to the establishment clause for its definition of "religion;" the establishment clause says that Congress may make no law respecting the establishment of "religion," while the free exercise clause says that Congress cannot prohibit the free exercise "thereof." Logically, the word "thereof" must have the same content as the object to which it refers. Accordingly, what counts as "religion" for one clause must count as "religion" for the other.

This is undeniable on both grammatical and logical grounds.

The argument against same-sex marriage is a religious argument and those like Huckabee that are making that argument jump to the Free Ex clause to claim their religion is under attack. It's a stupid argument but it plays to the emotionalism connected to religion. However, by doing that they are claiming that marriage counts as religion. If marriage counts as religion for the purpose of Free Exercise, then logically it must also count as religion for the purposes of Establishment. There's no getting around that. So that leaves the court with the logical question that if Heterosexual Marriage is legal and protected, then Homosexual marriage must logically follow. There is no logical reason to deny it. Only a religious reason and religion cannot be the criterion used for making laws. That drives religious people crazy, but it really has no bearing on their marriages at all. It doesn't affect their status one bit, so they have no logical reason for objecting to it.

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HSchneider 17 months ago from Parsippany, New Jersey Author

Adagio, Justice Scalia may argue that the Constitution is not a "living document" but he does not always rule that way. I wrote a Hub about the myth of conservative judicial restraint where I documented areas that conservatives, including Scalia, stretch the document. This includes Bush v Gore and Citizens United among many other examples.

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HSchneider 17 months ago from Parsippany, New Jersey Author

I totally agree with you, Adagio, that religion should and has no place in this Constitutional argument. Religions are allowed, as they should be, to exclude marrying these couples. Those are their tenets and no one is forcing them otherwise. But the Equal Protection clause of the 14th Amendment is clear. If governments can issue marriage licenses for heterosexual couples, they must also do so for homosexual couples. One may not agree with this Amendment but I find it to be abundantly clear.

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