The Fourteenth Amendment was passed and ratified through a two-year fight that Congress won only by placing most of the former Confederacy under military rule. Congress approved the joint resolution on June 13, 1866, sent it to the states without the president’s signature, and then, after southern legislatures rejected it, made ratification a condition of readmission to the Union under the Reconstruction Acts of 1867. Secretary of State William Seward certified the amendment as part of the Constitution on July 28, 1868.1National Archives. 14th Amendment to the U.S. Constitution: Civil Rights (1868)
Why Congress Wanted an Amendment
The Supreme Court’s 1857 decision in Dred Scott v. Sandford held that Black people, free or enslaved, were not citizens and had no standing to sue in federal court.2National Museum of African American History and Culture. Reconstructing Citizenship That ruling was still the law when the Civil War ended, and only a constitutional amendment could override it.
Congress had already passed the Civil Rights Act of 1866, declaring all persons born in the United States to be citizens. But Representative John Bingham of Ohio, who would draft the amendment’s first section, believed Congress lacked the constitutional authority to enforce that statute against the states.3National Constitution Center. Primary Source: John Bingham, One Country, One Constitution, One People A later Congress could also repeal it. An amendment would put birthright citizenship and equal protection beyond the reach of any legislature or hostile court.
Drafting in the Joint Committee on Reconstruction
Congress created the Joint Committee on Reconstruction in December 1865 to decide whether former Confederate states had governments fit to send representatives to Washington, and to draft the legislation that would settle the postwar constitutional questions. The committee had fifteen members — nine from the House, six from the Senate, twelve Republicans and three Democrats — and was chaired by Senator William Pitt Fessenden of Maine. After hearings, it concluded that the southern states were “disorganized communities, without civil government” and could not yet resume normal political relations with the federal government.4United States Senate. Joint Committee of Fifteen on Reconstruction
Bingham was the principal author of Section 1, which extended due process and equal protection against the states. The committee consolidated proposals from both chambers into a five-section package covering citizenship, congressional apportionment, disqualification of former Confederate officials, the public debt, and congressional enforcement power.1National Archives. 14th Amendment to the U.S. Constitution: Civil Rights (1868)
The Congressional Votes
Article V requires a two-thirds vote in both chambers to send a proposed amendment to the states.5National Archives. Constitutional Amendment Process The House passed the initial resolution on May 10, 1866, by 128 to 37.6Library of Congress. 14th Amendment to the U.S. Constitution: Primary Documents in American History The Senate revised the text and approved its version on June 8, 1866.7United States Senate. Landmark Legislation: The Fourteenth Amendment
Because the Senate had changed the language, the House had to vote again. On June 13, 1866, it agreed to the Senate’s version, 120 to 32.6Library of Congress. 14th Amendment to the U.S. Constitution: Primary Documents in American History A proposed constitutional amendment is not presented to the president for signature or veto, so the joint resolution went directly to the Secretary of State for transmission to the state legislatures.5National Archives. Constitutional Amendment Process
Andrew Johnson’s Opposition
President Andrew Johnson could not veto the amendment, but he could campaign against it, and he did. In the late summer of 1866, he toured northern cities in a series of speeches known as the “swing around the circle,” urging states to reject ratification. Johnson believed abolishing slavery was enough and that extending citizenship and equal protection to formerly enslaved people went too far.
His opposition mattered. It gave political cover to southern legislatures already inclined to refuse, and by early 1867 every former Confederate state except Tennessee had rejected the amendment. Northern and western states were ratifying quickly, but with the South unified in opposition, the count was not going to reach the required three-fourths.
Forced Ratification Under the Reconstruction Acts
Ratification required approval by three-fourths of the state legislatures.8Constitution Annotated. ArtV.1 Overview of Article V, Amending the Constitution With thirty-seven states in the Union, that meant twenty-eight.9Constitution Annotated. Civil War Amendments (Thirteenth, Fourteenth, and Fifteenth) To reach it, Congress passed the Reconstruction Acts of 1867 over Johnson’s vetoes, placing ten of the eleven former Confederate states under military rule and dividing them into five military districts.10United States Senate. The Civil War: The Senate’s Story Tennessee was the exception; it had already ratified in 1866 and been readmitted.11Equal Justice Initiative. Military Reconstruction
The terms of readmission were fixed. Each occupied state had to draft a new constitution guaranteeing voting rights regardless of race, hold elections under it, and ratify the Fourteenth Amendment. Only then could its senators and representatives be seated in Congress.10United States Senate. The Civil War: The Senate’s Story Military commanders supervised voter registration and the election of new legislatures, which then produced the ratifying votes.
This is what sets the Fourteenth Amendment apart from every other amendment in American history. The choice put to the southern states was ratify or remain under military occupation with no representation in Congress. Whether that constitutes legitimate persuasion or coercion has been argued by legal scholars ever since. It worked: state by state, the reconstituted southern legislatures ratified.
Rescissions and Final Certification
The path to certification did not run cleanly. Two northern states, Ohio and New Jersey, tried to rescind their earlier ratifications after political control of their legislatures shifted. New Jersey’s rescission resolution accused Congress of having violated the Constitution in the way it obtained the two-thirds vote in the first place. When Secretary of State Seward prepared to certify, he had twenty-nine ratifications, but two carried these rescission attempts.
On July 20, 1868, Seward issued a conditional proclamation. He listed the ratifying states and noted that whether Ohio’s and New Jersey’s rescissions were valid was “a matter of doubt and uncertainty,” saying that if those ratifications still counted, the amendment had been ratified. Congress acted the next day. On July 21, 1868, it adopted a concurrent resolution declaring that twenty-nine states had ratified and directing the Secretary of State to promulgate the amendment as part of the Constitution.12U.S. Government Publishing Office. Constitution, Jefferson’s Manual, and the Rules of the House of Representatives
Georgia’s ratification on July 21, 1868, resolved the arithmetic by pushing the count past twenty-eight even if the two rescissions were counted as withdrawals. On July 28, 1868, Seward issued an unconditional proclamation declaring the Fourteenth Amendment part of the Constitution.1National Archives. 14th Amendment to the U.S. Constitution: Civil Rights (1868) That is the official certification date. The commonly cited date of July 9, 1868, is the day the twenty-eighth state approved the amendment, when the three-fourths threshold was technically reached.9Constitution Annotated. Civil War Amendments (Thirteenth, Fourteenth, and Fifteenth)