First of all, the Fourteenth Amendment is not one that I can successfully unpack in one blog post, so we’re going to look at Section One today and hopefully I’ll get to two more sections next week so that we don’t get hung up too long on one amendment.
I’ll give y’all a brief overview of The Fourteenth Amendment: Section One today but please watch the video below of Ilan Wurman, Ph.D. giving a brilliant and comprehensive overview of this amendment, the historical context surrounding it, and the changes that have occurred since. It’s an hour long, but well worth your time.
"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."
It’s amazing that so much can be packed into such a small bit of text, not to mention the other four sections of the amendment. So, what’s the historical context to this amendment–specifically this section of the Fourteenth Amendment?
Congress first introduced the Fourteenth Amendment in the Spring of 1866 and formally ratified it on July 28, 1868. If you know anything about American history, the historical context of this amendment is likely rather obvious.
As you’ll hear Dr. Wurman discuss above, prior to this amendment, there was no clear distinction in the Constitution between being a citizen of a state and a citizen of the United States. Some states argued that in order to be a United States citizen one had to be a citizen of a state first. Others argued that the Constitution established that anyone born in the United States was already a citizen regardless of state citizenship. But the real issue was how to handle slaves and their “citizenship”. See, Article IV of the U.S. Constitution establishes that all states much treat anyone coming from another U.S. state as they would treat their own citizens. In other words, Georgia cannot treat citizens of Louisiana as foreigners. This was critical to the functioning of the country as a union of states rather than a loose conglomeration of separate countries.
However, things got dicey when southern states began arguing that free black Americans, usually citizens of northern states, were not citizens of the United States and therefore did not deserve the equal treatment other visiting white Americans would under Article IV of the U.S. Constitution.
It’s all screwy here.
So, a controversy dealing with this very issue went to the Supreme Court and this is where we get the infamous Dred Scott case. In the 1857 Dred Scott v. Sanford ruling, the Court held that Dred Scott, a former slave who now lived in a free territory of the United States, was not a citizen of any state because the Constitution limited state and national citizenship on racial grounds (which, if you know anything about the Constitution, it did no such thing). In other words, the Court claimed that Mr. Scott could not be considered free in his new residence in a free territory because the Constitution does not grant citizenship to blacks.
This interpretation of the Constitution was both implicitly and explicitly wrong, something that the case’s dissenters and many others tried to point out.
Dr. Amar of Yale University puts it this way: “As a matter of history, many of Taney’s [Chief Justice on the] assertions were plainly false: As dissenting Justices and other critics of Taney made clear, free blacks were viewed as citizens in several states at the time of the Founding; indeed, some blacks had even fought in Washington’s army, and had in several states been eligible to vote on the Constitution itself in 1787-88.The newly formed Republican Party set out to reverse various aspects of Dred Scott—most pressingly, the decision’s ruling that Congress could not generally prohibit slavery in federal territories.”
The thing is, the Constitution never once mentioned race, gender, religion or any other demographic factors. In fact, the Constitution left most citizenship issues to the states, aside from that of naturalization, becoming an American citizen, and even that was primarily left to the states’ discretion.
So, this issue of what makes an American citizen an American citizen needed to be settled. Further, what privileges does one possess through citizenship? What does it mean to be American? What comes with that title?
These are easier questions to ask than to answer. One could argue that being an American citizen guarantees the right to vote; but, at the ratifying of this amendment, women were citizens and, in some states, unable to vote. Even today, American citizens under the age of 18 are technically citizens but they’re not afforded the right to vote. So, this question of what the “privileges and immunities” of American citizens actually means is harder to answer than one might think.
What It Does
So, I’ll try to give you a brief overview of what this first section of the amendment does, but I also encourage you to do your own research, watch the above video and consider the many questions “citizenship” stirs up.
The simplest answer is this subsection title is this: section one establishes that if someone is born or naturalized (made a citizen) of the United States, they retain all rights afforded to American citizens regardless in which state they reside (think of the historical context I touched on above). Further, no matter who someone is, rich/poor, dumb/smart, black/white, male/female, if born in this country, they are a citizens and retain every liberty afforded through that citizenship. In other words, blacks (or anyone else for that matter) cannot be stripped of their privileges and immunities if they leave a free state and live in a slave state. Any liberty an American possess in one state stays the same across all states.
The text proceeds to say that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. Basically, the federal Constitution protects American citizens not only from the federal government but also from state governments who would want to abuse the liberties of their citizens.
This was a rather significant change in the dynamics of the relationship between the states and the federal government, heavily tilting power in the federal government’s favor.
The amendment proceeds to explore what citizenship entails in the following sections, but firmly establishes that American citizenship brings with it certain privileges and immunities that not even state governments can abridge (as they were doing prior to this amendment).
Many have argued and still argue, rather successfully, that this amendment, specifically this section, not only empowers the federal government to step in when state governments act contrary to the Constitution and a citizen’s liberty, but that it also empowers the federal government to step in when private actors deprive or hinder a citizen’s privileges and immunities. In fact, it’s this amendment that was used to support the arguments that supported landmark cases such as Roe v. Wade (1973) and Obergefell v. Hodges (2015).
Law, Constitutionality, liberty, abuse and the like start getting a bit more complicated here. Citizens should be equal under the law. All American citizens should possess the same liberty under the law.
That’s the kicker, under the law. The power of the federal government becomes very arbitrary when applied to the private sphere. One could argue, in some such scenarios as government stepping in to stop a private actor from depriving or hindering another citizen’s privileges and immunities, that government is having to hinder the private actor’s privileges and immunities to do so.
I’m not here to unpack or discuss all the nuance of this though, just giving you some food for thought.
American citizenship should come with very distinct privileges and they should be shared equally by every citizen. Being American is a privilege and the primary privilege of being an American we almost all tend to forget is that we get to be government’s boss. We best milk that privilege for all its worth while we still can.
The Liberty Belle