Alexander's Column

The Fourteenth Amendment and Immigration

Mark Alexander · Jan. 1, 2000

Note: Article I, section 2, of the Constitution was modified by section 2 of 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.

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 the power to enforce, by appropriate legislation, the provisions of this article.

Fourteenth Amendment, United States Constitution

*Changed by section 1 of the 26th amendment.

(For Constitutional context, read “To secure these rights…” on The Bill of Rights and A “Living Constitution” for a Dying Republic. For additional resources, see The Patriot’s Topical Essays page and our Historic Documents page.)

Proposed in Congress on June 13, 1866, in the aftermath of the American Civil War, and ratified on July 9, 1868 as a part of the Constitution, the Fourteenth Amendment is one of the three post-war amendments guaranteeing the liberties of former slaves. Framing it are the Thirteenth and Fifteenth Amendments. The Thirteenth Amendment (1865) outlawed slavery in the United States; the Fifteenth Amendment (1870) removed race-based restrictions on voting. Between the two, the Fourteenth Amendment broadly defines U.S. citizenship to incorporate freedmen and other persons of color, passed in response to the Black Codes enacted across the South in response to the ratification of the Thirteenth. Today, the Fourteenth Amendment has taken on new dimensions far beyond its post-war intent. Writing on the centennial of the Amendment’s ratification, constitutional scholar Bernard Schwartz concluded of the Fourteenth that, “In the century since it became a part of the fundamental law, the amendment has become, practically speaking, perhaps our most important constitutional provision – not even second in importance to the original basic document itself.”

Without question, the Fourteenth Amendment accomplished a great good, undoing what John Jay called “an inconsistency not to be excused” in our constitutional Republic, and what James Madison called “the most oppressive dominion ever exercised by man over man.” In fact, as Madison argued to the Constitutional Convention of 1787, he “thought it wrong to admit in the Constitution the idea that there could be property in men.” With its two sister amendments, the Fourteenth justified one of Thomas Jefferson’s central beliefs about the new republic: “Nothing is more certainly written in the book of fate than that these people are to be free.” Indeed, as Supreme Court Justice Noah Swayne would come to regard the three, “Fairly construed, these amendments may be said to rise to the dignity of a new Magna Carta.”

Yet, as Benjamin Franklin warned, “Slavery is such an atrocious debasement of human nature, that its very extirpation, if not performed with solicitous care, may sometimes open a source of serious evils.” Franklin’s utterance proved prophetic, as the Fourteenth Amendment proved anything but an exercise in “solicitous care.” While Section 1 of the Fourteenth Amendment guaranteed the franchise to freed male slaves, Section 2 disenfranchised another large swath of the southern population on the grounds of “participation in rebellion.” Section 3 went further still, making the South’s wartime leadership ineligible for public office on grounds of “insurrection and rebellion.” While the guarantees of Section 1 were necessary and good, the joint effect of Section 1 with the harshness of Sections 2 and 3 would intensify unnecessarily the social and political chaos already present in the Reconstruction era South. As the centerpiece of the Radical Reconstruction, the Fourteenth Amendment served to eliminate effective southern participation in government for a generation, and effectively negated federalism as the guiding principle of the American republic.

The Fourteenth’s effect on federalism had several dimensions under its original interpretation, but the Amendment’s ambiguity would ensure that its impact on state prerogatives would not be limited to original intent only. The Fourteenth’s implications for federalism under the Amendment’s original reading are found in Sections 1 and 2. As the federalist implications of Section 1 have continued to expand through the present day, we will consider these Sections in reverse order.

First, from Section 2: “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.”

Here, the implications for federalism were twofold. First, the Amendment does not directly grant freedmen the right to vote, but punishes the southern states for not enacting black enfranchisement laws on their own under penalty of drastically reduced representation at the federal level. In this way the language of the Fourteenth attempts to uphold federalism in appearance, but in reality forces the hands of southern legislatures on the timing and scope of enfranchisement.

As constitutional historian Raoul Berger wrote in one of the most important works ever written on the Constitution, Government by Judiciary: The Transformation of the Fourteenth Amendment, such a reinterpretation of suffrage constituted a serious challenge to the framers of the Constitution: “In short, the proof is incontrovertible that the framers meant to leave control of suffrage with the States, which had always exercised such control, and to exclude federal intrusion. On traditional canons of interpretation, the intention of the framers being unmistakably expressed, that intention is as good as written into the text.”

Second, Section 2’s mandate of disenfranchisement “for participation in rebellion” amounts to a declaration of the illegality of state secession from the union – a sacrosanct principle under the Articles of Confederation and under the original understanding of the Constitution. If the states did not reserve the right to secede when the federal government overstepped its constitutional bounds, federalism as the guiding principle of the republic was a dead letter.

Next, we consider the federalist implications of the Fourteenth’s Section 1: “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.”

As suggested above, under more contemporary, broader interpretations, the Fourteenth’s affront to federalism continues to expand. At least in part this expansion is a direct result of the Amendment’s ambiguity. Beginning with Adamson v California (1947) and Rochin v California (1952), the Fourteenth Amendment’s modern assault on federalism came to center on the Due Process Clause of Section 1 (included the quoted section above). Specifically, the question was whether the Bill of Rights (the first eight amendments to the Constitution) applied to the states, or to the federal government exclusively.

Historically, the answer to this question had been clear. When the Constitution was sent to the states for ratification, the response from the states was to propose a series of changes – changes ultimately incorporated in the Bill of Rights. Only with these provisions in place would the states ratify the new national Constitution because, it was believed, the rights enumerated in the Bill of Rights would restrict the incursions of the federal government upon its citizens. Proposes by the states, the Bill of Rights was never intended to be binding upon the states, but upon the new federal government only. In this way federal government would be explicitly limited in its scope, thereby preserving the right of the individual states to exercise primary authority over their citizens.

Yet far from a contemporary problem of the Fourteenth, evidence suggests that the Radical Reconstructionists originally intended the Amendment to bind the states with respect to the Bill of Rights as a further guarantee upon freedmen’s suffrage and civil equality. According to Schwartz:

“From the founding of the Republic to the end of the Civil War, it was the states that were the primary guardians of their citizens’ rights and liberties and they alone could determine the character and extent of such rights. That was true because the Bill of Rights was binding upon the federal government alone – not the states. With the Fourteenth Amendment, all this was altered. The amendment called upon the national government to protect the citizens of a state against the state itself. Thenceforth, the safeguarding of civil rights was to become primarily a federal function.”

Nevertheless, the Fourteenth Amendment’s insistence upon binding the states by the Bill of Rights violated the very principle entailed in the Bill of Rights. Can a constitutional amendment rewrite the meaning of any portion of the Constitution it does not directly amend, much less a portion so fundamental the nature and function of the Constitution as the Bill of Rights? Likewise, can the courts perpertually expand upon the meaning of “due process”? At least implicitly, these are the questions Justice Frankfurter would ask first in Adamson and again in Rochin.

In Rochin, Frankfurter recognizes that “due process” is “indefinite and vague,” but nonetheless connotes a sense of “fair play” and respect for the “decencies of civilized conduct.” Concurring with his judgment, Justices Douglas and Black nevertheless dismissed Frankfurter for his highly subjective, “nebulous” definition for the Due Process Clause, which they feared would allow the courts to play on the “accordion” of due process, expanding and retracting rights at will. Instead, they argued, the issue in Rochin was not whether due process had been violated, but whether the defendant had been forced to self-incriminate contrary to his 5th Amendment right. In other words, the Bill of Rights applied to the states, not the federal government only. Frankfurter understood the implications of such a decision five years earlier, in Adamson, where he first sparred with Justice Black over the applicability of the Bill of Rights to the states. To bind the states by the very laws which they designed to bind the federal government, Frankfurter said, was to say that the Due Process Clause “incorporated” the Bill of Rights as binding law upon the states, something they were never intended to do.

Not surprisingly, this “incorporation theory” (as Frankfurter dubbed it) of the Fourteenth Amendment heralded a tidal shift in modern constitutional law, dismantling the federal structure of American government in all but name. This sea change was quick in coming. The same year as Adamson, the Court heard Everson v Board of Education (1947), where it decided 5-to-4 that state reimbursement of parents for the expense of busing their children to parochial schools did not violate the First Amendment. Though the Court ruled that Everson did not constitute a violation of the 1st Amendment’s Establishment Clause, the ruling nevertheless upheld the applicability of the First Amendment to the states.

The Establishment Clause of the 1st Amendment is, in many ways, one of the best examples of the Court’s expansive use of the Bill of Rights through the Fourteenth Amendment. In point of fact, Supreme Court interpretation of the Establishment Clause does not exist in any context until 1947’s Everson, contemporary with the Adamson decision’s broadening of the Fourteenth. It was only the beginning.

In the following year, the Court ruled that optional religious instruction in public schools by invited clergy did overstep the Establishment Clause. However, the Court ruled in the 1952 case Zorach v Clauson that public schools could give students “release time” from school hours for religious instruction outside the school. Here the Court noted that the Establishment Clause does not necessitate the state’s “callous indifference to religion.”

Prayer in schools came under attack in 1962 with Engel v Vitale, where the Court ruled that New York public school system’s practice of beginning the school day with prayer (specifically a prayer written by school officials) violated the Establishment Clause. Justice Black wrote that New York’s practice amounted to “indirect coercive pressure upon religious minorities to conform to the officially approved religion,” whether or not students had the option not to participate. The constitutionality of time set aside for optional silent prayer in school was the next practice to come into question, spawned by the particular wording of an Alabama law beginning the school day with “a period of silence for meditation” that the state legislature amended to read “a period of silence for meditation or silent prayer.” The case, Wallace v Jaffree, ruled that the amended language was unconstitutional because it lacked a clear secular purpose. Subsequent decisions struck down the constitutionality of prayer in public school ceremonies (Lee v Weisman, 1992) and before school events (Santa Fe v Doe, 2000). Not only was the applicability of the Fourteenth Amendment expanding, but the states’ liabilities under the Bill of Rights were expanding, too.

Indeed, constitutional constructionism is at the very heart of the historic and contemporary debate over the relationship between church and state in American life. All other concerns notwithstanding, the Supreme Court’s history of rulings on the Establishment Clause is first and foremost an affront to federalism. In any discussion of the Establishment Clause, the grammatical subject of the sentence cannot be ignored: “Congress shall make no law respecting an establishment of religion….”

In other words, the federal government cannot establish a religion; the amendment says nothing of states’ or local governments’ prerogatives in establishing or otherwise supporting religion. According to the First Amendment, the states’ postures on the establishment of religion are relegated to the Tenth Amendment; all authority not explicitly residing in the federal government is reserved to the states and the people. To say then that the Tenth Amendment is undone by the Fourteenth is to ignore original intent and trample the fabric of the Republic!

To be perfectly clear, if the standard of constitutional federalism is applied to the First Amendment, the states are at liberty to establish official religions within their boundaries – not to mention sanction prayer in classrooms and at ballgames, subsidize parochial schools and other religions institutions, or erect religious-themed monuments on public property with public funds. To recognize this fact is not to say that a state’s establishment of religion would be a good idea, but it is not within the jurisdiction of the federal government to prohibit it.

Far from a hair-brained interpretation, such a federalist reading of the Establishment Clause was the basis of Justice Clarence Thomas’s concurrent opinion in the 2004 case Elk River Unified School District v Newdow, where the Pledge of Allegiance’s phrase “under God” was challenged as a First Amendment violation. (The Supreme Court’s majority opted for a procedural escape, ruling that as a non-custodial parent Michael Newdow did not have grounds to bring the case against his child’s school district.)

Regrettably, expansive interpretations of the Establishment Clause, both in its scope and its applicability to the states, has not been the Fourteenth Amendment’s only intrusion upon federalism. In his book, A Matter of Interpretation, Justice Antonin Scalia writes that the Due Process Clause of the Fourteenth Amendment is his “favorite example of a departure from text” that has “enabled judged to do more freewheeling lawmaking than any other….” The Due Process Clause says that no person shall “be deprived of life, liberty, or property without due process of law.” Nevertheless, Scalia notes, “It has been interpreted to prevent the government from taking away certain liberties beyond those, such as freedom of speech and of religion, that are specifically named in the Constitution.” However, “the Due Process Clause quite obviously does not bear that interpretation. By its inescapable terms, it guarantees only process. Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process that our traditions require – notably, a validly enacted law and a fair trial. To say otherwise,” Scalia concludes, “is to abandon textualism, and to render democratically adopted texts mere springboards for judicial lawmaking.”

Such judicial activism has been the foremost characteristic of the courts in living memory, and the Fourteenth Amendment has become the vehicle for the courts’ every whim. Only when a proper understanding of the Constitution is restored – namely, an understanding of the primacy of original intent with respect to the Bill of Rights, the rights reserved to the people by the Ninth Amendment and the federalism guaranteed by the Tenth Amendment – will the courts cease to act to the detriment of democratic republicanism.