THE 14TH AMENDMENT AND INCORPORATION
The 14th Amendment and Incorporation
BIG QUESTIONS
The 14th Amendment and Incorporation
THE RECONSTRUCTION ERA
13TH AMENDMENT
15TH AMENDMENT
14TH AMENDMENT
Abolished slavery
1865
Wrote promises of freedom and equality into the Constitution
1868
Banned racial discrimination in voting
1870
The 14th Amendment and Incorporation
During this period we saw African Americans:
And we saw the national government—for a time—acting to protect the constitutional rights of all.
THE RECONSTRUCTION ERA
The 14th Amendment and Incorporation
BIG IDEA
Constitutional: �The 14th Amendment wrote the Declaration of Independence’s promise of freedom and equality into the Constitution. It transformed the Constitution forever. And it’s at the heart of what many scholars refer to as America’s “Second Founding.”
The 14th Amendment and Incorporation
BIG IDEA
Modern: �Even so, the 14th Amendment is the focus of many of the most important constitutional debates (and Supreme Court cases) today. In many ways, the history of the modern Supreme Court is really a history of modern-day battles over the 14th Amendment’s meaning. So many of the constitutional cases that you care about today turns on the text that we just read.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
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.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
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.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
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.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
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.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
Section 5
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
4 BIG FEATURES:
Scholar Exchange: Battles for Equality in America: The 14th Amendment
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
BIRTHRIGHT CITIZENSHIP
Dred Scott is overturned, African Americans did have rights that the white man was bound to respect, and if you’re born on American soil, you’re an American citizen.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
EQUALITY
The original Constitution was silent on the issue of equality, and now the Declaration of Independence’s promise (that “all men” and women “are created equal”) is written into the Constitution.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
FREEDOM
The original Bill of Rights was limited to abuses by the national government, and now the Constitution protects those in the United States from abuses of key rights by the states—key rights like those in the Bill of Rights like free speech and religious liberty.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
NATIONAL POWER OVER CIVIL RIGHTS
Congress is now given the power to enforce the protections enshrined in the 14th Amendment. The Reconstruction Amendments are the first set of constitutional amendments to expand the reach of national power—rather than restrict it (as, for instance, the Bill of Rights did). So, Congress has more power than before.
The 14th Amendment and Incorporation
JOHN BINGHAM
Who was John Bingham?
The 14th Amendment and Incorporation
JOHN BINGHAM
Who was John Bingham?
The 14th Amendment and Incorporation
JOHN BINGHAM
Bingham’s vision for the 14th Amendment:
“a simple, strong, plain declaration that equal laws and equal and exact justice shall hereafter be secured within every State of the Union,” guaranteeing “equal protection” for “any person, no matter whence he comes, or how poor, how weak, how simple—no matter how friendless.”
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
4 BIG FEATURES:
Scholar Exchange: Battles for Equality in America: The 14th Amendment
The 14th Amendment and Incorporation
DRED SCOTT V. SANDFORD (1857)
DRED AND HARRIET SCOTT
The 14th Amendment and Incorporation
UNITED STATES V. WONG KIM ARK (1894)
The 14th Amendment and Incorporation
WONG KIM ARK
Facts of the Case:
Wong Kim Ark was born in San Francisco to parents who were both Chinese citizens who resided in the United States at the time. At age 21, he went to China to visit his parents who had previously resided in the United States for 20 years. When he returned to the United States, Wong was denied entry on the ground that he was not a citizen.
UNITED STATES V. WONG KIM ARK (1894)
The 14th Amendment and Incorporation
The Outcome:
The Court ruled in favor of Wong Kim Ark. Justice Horace Gray authored the opinion on behalf of a 6-to-2 majority.
The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause
UNITED STATES V. WONG KIM ARK (1894)
JUSTICE HORACE GRAY
The 14th Amendment and Incorporation
THE CITIZENSHIP CLAUSE
Amendment 14, 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…
The 14th Amendment and Incorporation
The Outcome:
Because Wong was born in the United States and his parents were not “employed in any diplomatic or official capacity under the Emperor of China,” the Citizenship Clause of the 14th Amendment automatically makes him a U.S. citizen.
The Supreme Court majority concluded that the phrase “subject to the jurisdiction thereof” referred to being required to obey U.S. law. On this basis, the Court interpreted the language of the 14th Amendment in a way that granted U.S. citizenship to children of parents from a foreign nation.
UNITED STATES V. WONG KIM ARK, (1894)
The 14th Amendment and Incorporation
UNITED STATES V. WONG KIM ARK, (1894)
The Dissent:
The Court’s dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power—that is, not being claimed as a citizen by another country (inheriting citizenship from one’s parents).
This interpretation would have excluded “the children of foreigners, happening to be born to them while passing through the country.”
The 14th Amendment and Incorporation
INDIAN CITIZENSHIP ACT OF 1924
The Indian Citizenship Act of 1924 granted all Native Americans citizenship. Congress passed this law, in part, in response to Native American service in World War I.
Calvin Coolidge with a Native American group at White House in 1925.
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
4 BIG FEATURES:
Scholar Exchange: Battles for Equality in America: The 14th Amendment
The 14th Amendment and Incorporation
Image: A segregated bus station in Durham, North Carolina in 1940. (Library of Congress)
PLESSY V. FERGUSON (1896)
The 14th Amendment and Incorporation
PLESSY V. FERGUSON (1896)
Who was Homer Plessy?
Homer Plessy appeared to be white and was born free, but was of mixed-race and therefore “black” under Louisiana law. He worked with a group called the Committee of Citizens.
There are no known images of Homer Plessy. A Mural by Ian Wilkinson, near the site where Plessy was arrested, depicts what he may have looked like.
—Images of P.B.S. Pinchback are often misidentified on the internet as Homer Plessy
The 14th Amendment and Incorporation
Facts of the Case:
Homer Plessy worked with a group called the Committee of Citizens. The Committee opposed Louisiana’s 1890 Separate Car Act, which segregated railroad cars within the state—separating African American from white passengers.
Plessy was chosen as a “test case,” so that the group could challenge the constitutionality of the Act. Plessy appeared to be white and was born free, but was of mixed-race and therefore “black” under Louisiana law. Plessy and his allies hoped that his arrest would prove the arbitrary nature of the law.
PLESSY V. FERGUSON (1896)
The 14th Amendment and Incorporation
The Outcome:
In a 7-1 decision, Plessy lost. Justice Henry Billings Brown wrote the majority opinion upholding “separate but equal” laws. In other words, according to the Supreme Court, Jim Crow laws—enforcing segregation and racial discrimination against African Americans—were constitutional laws didn’t violate either the 13th or 14th Amendments.
JUSTICE HENRY BILLINGS BROWN
PLESSY V. FERGUSON (1896)
The 14th Amendment and Incorporation
Brown wrote that while the object of the 14th Amendment was “undoubtedly to enforce the absolute equality of the two races before the law, . . . in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.”
PLESSY V. FERGUSON (1896)
JUSTICE HENRY BILLINGS BROWN
The 14th Amendment and Incorporation
Brown wrote that the underlying mistake of Homer Plessy’s argument was “the assumption that the enforced separation of the two races stamps [African Americans] with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because [African Americans] choose [] to put that construction on it.”
PLESSY V. FERGUSON (1896)
JUSTICE HENRY BILLINGS BROWN
The 14th Amendment and Incorporation
Justice John Marshall Harlan was the lone dissenter.
Harlan said that everyone understood the real purpose of the Louisiana law. It was not a neutral purpose to exclude white people from railroad cars occupied by African Americans, but rather to exclude African Americans from coaches occupied by whites under the “guise of equal accommodation.”
PLESSY V. FERGUSON (1896)
JUSTICE JOHN MARSHALL HARLAN
The 14th Amendment and Incorporation
“In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. ... In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”
Justice John Marshall Harlan, dissenting
PLESSY V. FERGUSON (1896)
The 14th Amendment and Incorporation
BROWN V. BOARD (1954)
LINDA BROWN
The 14th Amendment and Incorporation
In Brown, they targeted the segregation of public schools. But the campaign itself was a gradual campaign to undermine segregation in other contexts like public universities and law schools before turning to segregation in public schools—a much more controversial issue.
THE ROAD TO BROWN
The 14th Amendment and Incorporation
Brown is the culmination of a long-term, decades-long strategy by the NAACP and its lawyers like Thurgood Marshall to challenge Jim Crow laws.
THE ROAD TO BROWN
THURGOOD MARSHALL
The 14th Amendment and Incorporation
The students for whom the famous Brown v. Board of Education case was brought, with their parents. �(Credit: Carl Iwasaki/The LIFE Images Collection/Getty Images)
BROWN V. BOARD (1954)
Brown combined similar cases which all involved African American students who had been denied admission to white public schools. The challengers argued that these segregation laws violated the 14th’s Amendment’s Equal Protection Clause and that separate could never be equal in public education.
The 14th Amendment and Incorporation
CHIEF JUSTICE EARL WARREN
In Brown, the Supreme Court unanimously overturned Plessy and concluded that school segregation violated the 14th Amendment’s promise of equality and was unconstitutional.
Chief Justice Warren: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
BROWN V. BOARD (1954)
The 14th Amendment and Incorporation
The Court concluded that even “separate but equal” facilities were, in reality, unequal, because separating the races resulted in a damaging brand of inferiority imposed on African American children.
BROWN V. BOARD (1954)
The 14th Amendment and Incorporation
LOVING V. VIRGINIA (1967)
And in 1967, the Supreme Court struck down laws banning interracial marriage in Loving v. Virginia. More on that case in a little bit!
MILDRED AND RICHARD LOVING
The 14th Amendment and Incorporation
Illustration of the House of Representatives committee receiving a delegate reading her argument in favor of women's voting, on the basis of the 14th and 15th Amendments (Library of Congress)
THE 14TH AMENDMENT AND GENDER EQUALITY
The 14th Amendment and Incorporation
VIRGINIA MINOR
In Bradwell v. Illinois and Minor v. Happersett, leading suffragists argued that the 14th Amendment’s Privilege or Immunities Clause protected their right to practice law and their right to vote. The Supreme Court rejects these arguments. 1870s
THE 14TH AMENDMENT AND GENDER EQUALITY
MYRA BRADWELL
The 14th Amendment and Incorporation
“The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”
…
“Man is, or should be, women’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”
THE 14TH AMENDMENT AND GENDER EQUALITY
JUSTICE JOSEPH P. BRADLEY
The 14th Amendment and Incorporation
Beginning in the 1970s, the Court reverses course—a litigation strategy developed (in part) by the late Ruth Bader Ginsburg (when she was a lawyer).
THE 14TH AMENDMENT AND GENDER EQUALITY
RUTH BADER GINSBURG
The 14th Amendment and Incorporation
In a series of cases, the Supreme Court reads the Constitution to protect against sex discrimination in a variety of contexts.
THE 14TH AMENDMENT AND GENDER EQUALITY
The 14th Amendment and Incorporation
Finally in United States v. Virginia the Court rules that the Virginia Military Institute’s male-only admissions policy violated the Equal Protection Clause.
The Court ruled that Virginia needed an “exceedingly persuasive justification” for its policy. And it concluded that offering an alternative school for women was not sufficient because it did not offer the same benefits, training, etc., as the well-established VMI.
UNITED STATES V. VIRGINIA (1996)
The 14th Amendment and Incorporation
“Sex classifications . . . may not be used, as they once were, . . . to create or perpetuate the legal, social, and economic inferiority of women.”
JUSTICE RUTH BADER GINSBURG
UNITED STATES V. VIRGINIA (1996)
The 14th Amendment and Incorporation
“Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, ‘our National has had a long and unfortunate history of sex discrimination.’ . . . Through a century plus three decades and more of that history, women did not count among voters composing ‘We the People’; not until 1920 did women gain a constitutional right to the franchise.”
JUSTICE RUTH BADER GINSBURG
UNITED STATES V. VIRGINIA (1996)
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
4 BIG FEATURES:
Scholar Exchange: Battles for Equality in America: The 14th Amendment
The 14th Amendment and Incorporation
INCORPORATION
Key Idea:�Incorporation is a constitutional practice the court follows, which makes most of the first ten amendments of the United States Constitution (known as the Bill of Rights) apply to state laws through the Due Process Clause of the 14th Amendment.
The 14th Amendment and Incorporation
When the Founding generation ratified the Bill of Rights, it only applied to abuses by the national government—not the states.
And in 1833, the Supreme Court confirmed this in Barron v. Baltimore.
For John Bingham, one clear purpose of the 14th Amendment was to apply the Bill of Rights to the states through the Privileges or Immunities Clause.
BILL OF RIGHTS PROTECTIONS
The 14th Amendment and Incorporation
In many ways, Justice Hugo Black was the driving force—the Court’s intellectual architect—behind the push for incorporation in the twentieth century.
However, in early cases like The Slaughter-House Cases and Cruikshank, the Supreme Court limited the 14th Amendment’s reach—rejecting early efforts to apply the 14th Amendment to abuses of key rights in the states.
BILL OF RIGHTS PROTECTIONS
JUSTICE HUGO BLACK
The 14th Amendment and Incorporation
SLAUGHTER-HOUSE CASES (1873)
The 14th Amendment and Incorporation
Image: Gathering the dead after the Colfax massacre, published in Harper's Weekly, May 10, 1873
UNITED STATES V. CRUIKSHANK (1876)
The 14th Amendment and Incorporation
In the 20th century, the Supreme Court began to reinvigorate Bingham’s vision and apply key Bill of Rights protections to the states—a process that lawyers call “selective incorporation.” During this period, the Court applied key Bill of Rights protections like free speech and religious liberty to the states on a case-by-case basis—one constitutional right at a time.
Today, the Supreme Court has incorporated virtually every right enshrined in the Bill of Rights against state abuses. There are only a few rights that the Court still hasn’t applied to the states—the Third Amendment (quartering of troops), the Fifth Amendment Grand Jury Right, and the Seventh Amendment Civil Jury Right.
BILL OF RIGHTS PROTECTIONS
The 14th Amendment and Incorporation
GITLOW V. NEW YORK (1925)
BENJAMIN GITLOW
The 14th Amendment and Incorporation
MCDONALD V. CHICAGO (2010)
OTIS MCDONALD
The 14th Amendment and Incorporation
MCDONALD V. CHICAGO (2010)
For much of its history, the Supreme Court issued few rulings addressing the Second Amendment. In 2008, the Supreme Court decided District of Columbia v. Heller (2008), holding that a D.C. handgun ban enacted by the federal government violated the Second Amendment.
Heller set a core Second Amendment principle: an individual had the right to possess a gun for purposes of protecting one’s home.
By challenging a similar handgun ban in Chicago, the McDonald case asked key follow-up questions: Does the 14th Amendment extend the Second Amendment’s key protections to state abuses? Should the Second Amendment be applied to abuses by the states?
The 14th Amendment and Incorporation
MCDONALD V. CHICAGO (2010)
In a divided 5-4 decision, the Supreme Court held that the right to keep and bear arms for the purpose of self-defense was “deeply rooted” in the nation’s history. And the Second Amendment was thus incorporated against the states through the 14th Amendment—meaning that the states could not infringe on that right.
The 14th Amendment and Incorporation
DISTRICT OF COLUMBIA V. HELLER (2008)
Scholar Exchange: Battles for Equality in America: The 14th Amendment
The 14th Amendment and Incorporation
UNENUMERATED RIGHTS
The Supreme Court has long protected rights—like the right to privacy—that are not directly mentioned in the Constitution. In other words, there’s no Privacy Clause. Lawyers call these “unenumerated rights”—rights not specifically listed in the Constitution.
What do you think? Does the Constitution protect rights not specifically listed in it—like a right to privacy?
The 14th Amendment and Incorporation
UNENUMERATED RIGHTS
Arguments IN FAVOR of a Right to Privacy:
The 14th Amendment and Incorporation
UNENUMERATED RIGHTS
Arguments AGAINST a Right to Privacy:
The 14th Amendment and Incorporation
UNENUMERATED RIGHTS
In Lochner v. New York
the Court protected an unenumerated
“right to contract.”
THE LOCHNERS
The 14th Amendment and Incorporation
SUBSTANTIVE DUE PROCESS
The idea that the Due Process Clause protects substantive rights like the right to work, as well as procedural rights like fairness—following legal procedures before jailing someone or taking away their property.
.
The 14th Amendment and Incorporation
UNENUMERATED RIGHTS
Justice Holmes, �Dissenting in Lochner:
“The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics. . . . A Constitution is not intended to embody a particular economic theory.”
JUSTICE OLIVER WENDELL HOLMES
The 14th Amendment and Incorporation
UNENUMERATED RIGHTS
In the 1920s, the Supreme Court:
Together, some argue that Pierce and Meyer suggest a “right to privacy.”
The 14th Amendment and Incorporation
GRISWOLD V. CONNECTICUT (1965)
The Court struck down state bans on the use of contraception by married couples on the ground that it violated their “right to privacy.”
Where did the Court find this right? Like the “freedom of contract,” the “right to privacy” is not explicitly guaranteed in the Constitution.
Justice Douglas drew it out of the “penumbras”—the shadowy edges—of rights that are listed in the Constitution.
The 14th Amendment and Incorporation
ROE V. WADE (1973)
NORMA MCCORVEY �(JANE ROE) �AND HER LAWYER
The 14th Amendment and Incorporation
ROE V. WADE (1973)
In Roe, a Texas woman—“Jane Roe”—sought an abortion. However, a Texas law banned abortions except in instances in which a woman’s life was endangered. “Jane Roe” challenged the Texas law, arguing that it was unconstitutional.
In a 7-2 decision, the Court held that the right to an abortion fell within the right to privacy previously established in Griswold v. Connecticut (1965).
Scholars, Justices, and judges still debate whether Roe was rightly decided and, if so, how to justify it.
The 14th Amendment and Incorporation
UNENUMERATED RIGHTS
The Court has also applied the right to privacy to strike down laws violating the rights of members of LGBTQ community. (Lawrence v. Texas (2003) overruling Bowers v. Hardwick)
Importantly, the Court has also protected a right to marry under the 14th Amendment. The key case is Loving v. Virginia (1967). In Loving, the Court struck down state bans on interracial marriage.
The 14th Amendment and Incorporation
LOVING V. VIRGINIA (1967)
MILDRED AND RICHARD LOVING
The 14th Amendment and Incorporation
LOVING V. VIRGINIA (1967)
CHIEF JUSTICE EARL WARREN
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the 14th Amendment, is surely to deprive all the State's citizens of liberty without due process of law.”
The 14th Amendment and Incorporation
OBERGEFELL V. HODGES (2015)
The 14th Amendment and Incorporation
OBERGEFELL V. HODGES (2015)
Scholar Exchange: Battles for Equality in America: The 14th Amendment
The 14th Amendment and Incorporation
OBERGEFELL V. HODGES (2015)
The Court extended a right to marry under the 14th Amendment’s Due Process and Equal Protection Clauses to same-sex marriage. The Court reasoned that state laws banning same-sex marriage caused “substantial” and continuing harm to same-sex couples by denying them marriage licenses—and, in turn, access to the institution of marriage.
JIM OBERGEFELL
The 14th Amendment and Incorporation
THE 14TH AMENDMENT
4 BIG FEATURES:
Scholar Exchange: Battles for Equality in America: The 14th Amendment
The 14th Amendment and Incorporation
CIVIL RIGHTS ACT OF 1964
THE SIGNING OF THE CIVIL RIGHTS ACT, 1964
Following Brown, the Supreme Court extended the reach of the Equal Protection Clause to cover discrimination in other settings.
A decade later, Congress passed the Civil Rights Act of 1964—a sweeping civil rights law promoting equality.
The 14th Amendment and Incorporation
VOTING RIGHTS ACT OF 1965
LYNDON JOHNSON AND MARTIN LUTHER KING JR. AT THE SIGNING OF THE VOTING RIGHTS ACT, 1965
The 14th Amendment and Incorporation
The Fourteenth Amendment wrote the Declaration of Independence’s promise of freedom and equality into the Constitution. And it’s at the heart of what many scholars refer to as America’s “Second Founding.”
THE 14TH AMENDMENT
BIG IDEA:
The 14th Amendment and Incorporation