July 9, 1868: What the 14th Amendment Established

Ratified on July 9, 1868, the Fourteenth Amendment established birthright citizenship, barred state governments from denying due process or equal protection of the laws, penalized states that stripped men of the vote, disqualified former officeholders who had joined an insurrection, protected the validity of the national debt, and gave Congress the power to enforce all of it. What the 14th Amendment established, in short, was a new constitutional floor beneath every state government in the country. Before 1868, the Bill of Rights limited only the federal government. After 1868, the states themselves were bound.

The amendment has five sections. Section 1 does the heaviest work and produces most of the litigation. Sections 2 through 4 solved specific problems left by the Civil War. Section 5 gave Congress the tools to enforce the whole thing.

Citizenship by Birth

Section 1 opens with the Citizenship Clause: all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the state where they live.¹ That sentence directly overturned the Supreme Court’s 1857 ruling in Dred Scott v. Sandford, which had held that African Americans could never be citizens. By writing birthright citizenship into the Constitution itself, the framers of the amendment made that holding permanently irreversible.

The phrase “subject to the jurisdiction thereof” carries narrow exceptions. Children born in the United States to foreign diplomats, children born to enemy forces during a hostile occupation, and, historically, members of Native American tribes governed by tribal law fell outside the clause.¹

The tribal exception left a real gap. In Elk v. Wilkins (1884), the Supreme Court ruled that a Native American man who had voluntarily left his tribe was still not a citizen by birth, because tribal members were not considered subject to United States jurisdiction in the way the clause required.² Congress closed the gap piecemeal, and then broadly with the Indian Citizenship Act of 1924, which declared all non-citizen Indians born within U.S. territorial limits to be citizens regardless of tribal affiliation.

Due Process Against the States

Section 1 also contains two clauses aimed squarely at state government. One, the Privileges or Immunities Clause, sounded sweeping on paper but was gutted almost immediately. In the Slaughter-House Cases (1873), the Supreme Court read it to protect only a narrow set of federal citizenship rights, such as access to federal waterways, leaving most civil liberties under state control.³ The clause has never recovered.

The Due Process Clause carried the weight instead. It provides that no state shall deprive any person of life, liberty, or property without due process of law.¹ Courts read that guarantee two ways.

Procedural due process is the intuitive half. Before a state takes something important from you, whether that is your liberty, your property, or a benefit you rely on, it must give you notice and a meaningful chance to be heard.

Substantive due process goes further. Certain rights are treated as so fundamental that no procedure can justify taking them away. The Supreme Court has used substantive due process to protect rights that appear nowhere in the constitutional text, including the right to marry, the right to direct the upbringing of your children, and the right to private intimate conduct.⁴

How the Bill of Rights Reached the States

The original Bill of Rights limited only Congress. A state could, in theory, punish speech or search homes without cause and never trigger the First or Fourth Amendments. The Due Process Clause changed that through what is now called the incorporation doctrine. Case by case, the Supreme Court has held that most protections in the Bill of Rights are fundamental enough to bind state governments too.⁵

The milestones stretch across the twentieth and into the twenty-first century. Gitlow v. New York (1925) applied free speech to the states. Mapp v. Ohio (1961) applied the ban on unreasonable searches. Gideon v. Wainwright (1963) required states to provide counsel in criminal cases. McDonald v. Chicago (2010) extended the individual right to keep and bear arms.⁵ A few provisions remain unincorporated: the Third Amendment’s ban on quartering soldiers, the Fifth Amendment’s grand jury requirement, the Seventh Amendment’s civil jury right, and parts of the Sixth Amendment governing jury selection from the location of the crime.

Substantive Due Process Today

The modern law of substantive due process has moved in opposite directions within a single decade. In Obergefell v. Hodges (2015), the Court held that the Fourteenth Amendment requires every state to license and recognize marriages between same-sex couples, calling the right to marry a fundamental liberty no state may deny.⁶

Seven years later, in Dobbs v. Jackson Women’s Health Organization (2022), the Court overruled Roe v. Wade and held that the Constitution does not confer a right to abortion, because that right is not “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”⁷ The decision returned abortion regulation to state legislatures and tightened the test for which unenumerated rights qualify for protection.

Equal Protection of the Laws

The last clause of Section 1 requires that no state deny any person within its jurisdiction the equal protection of the laws.⁸ A state must treat similarly situated people alike and cannot single out groups for arbitrary or discriminatory treatment. The clause produced Brown v. Board of Education (1954), which held that racially segregated public schools are inherently unequal and violate the Fourteenth Amendment.

When a law draws lines between groups, courts apply one of three levels of scrutiny.⁹

Rational basis review is the default for most economic and social legislation. The government need only show that the classification is rationally related to a legitimate purpose. Most laws survive.
Intermediate scrutiny applies to gender-based classifications. The government must prove the classification serves an important interest and is substantially related to achieving it.
Strict scrutiny applies to classifications based on race, national origin, religion, or alienage, and to laws that burden fundamental rights. The government must show a compelling interest and a narrowly tailored means of pursuing it. Laws reviewed at this level rarely survive.

The Court’s 2023 decision in Students for Fair Admissions v. Harvard shows strict scrutiny at work. The Court held 6-3 that race-conscious admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause. The majority found the universities’ stated goals too subjective to measure and their programs without meaningful endpoints. The ruling ended the use of race as a factor in college admissions, though the Court noted that applicants may still discuss how race has affected their lives in their essays.

Representation and the Disenfranchisement Penalty

Section 2 solved a math problem created by emancipation. Under the original Constitution, enslaved people counted as three-fifths of a person for apportioning House seats. Once the Thirteenth Amendment ended slavery, formerly enslaved people would count fully, which would have handed Southern states more congressional power even as those states denied Black men the vote.¹⁰

Section 2 replaced the three-fifths formula with a penalty. Representatives would be apportioned based on the whole number of persons in each state, but if a state denied the vote to any of its male citizens aged twenty-one or older, except for participation in rebellion or conviction of a crime, its representation would be reduced proportionally. The penalty was never enforced. The 1870 Census attempted to collect the necessary data, Congress dismissed the results as unreliable, and no state was penalized during the 1872 reapportionment. Southern states continued to disenfranchise Black voters for nearly a century, until the Voting Rights Act of 1965.

Disqualification for Insurrection

Section 3 bars anyone who previously swore an oath to support the Constitution as a federal or state officeholder and then engaged in insurrection or rebellion from holding office again. Congress can lift the disqualification, but only by a two-thirds vote of each chamber.¹¹ The clause was written to keep former Confederate leaders out of government, and Congress eventually removed the disability for most of them through amnesty legislation in the 1870s and 1880s.

Section 3 returned to the front pages after January 6, 2021. Several states moved to remove former President Donald Trump from the 2024 presidential ballot as a person who had engaged in insurrection. In Trump v. Anderson (2024), the Supreme Court unanimously reversed Colorado’s disqualification. States, the Court held, have no power to enforce Section 3 against candidates for federal office; only Congress can do that.¹²

The Public Debt

Section 4 declared that the validity of the public debt of the United States “shall not be questioned” and voided all debts incurred in aid of the Confederacy, including any claim for compensation tied to the emancipation of enslaved people.¹³ The immediate goals were to protect Union war debts, repudiate Confederate ones, and cut off any lawsuit by former slaveholders seeking payment for freed people.

The clause has taken on unexpected relevance during debt ceiling standoffs. Legal scholars have argued that Section 4 could allow a president to keep borrowing past a statutory debt ceiling on the theory that a default would “question” the validity of the public debt. No president has tested the theory, and no court has resolved it, but the clause resurfaces in every serious debt limit dispute.

Congressional Enforcement Power

Section 5 gives Congress the power to enforce the amendment “by appropriate legislation.”⁸ That authority underlies the Civil Rights Act of 1964, the Voting Rights Act of 1965, and much of the modern federal civil rights code.

Its reach is not unlimited. In City of Boerne v. Flores (1997), the Court held that Section 5 gives Congress only remedial power: the ability to prevent or remedy violations of rights the courts have already recognized, not the authority to expand the meaning of those rights. Any statute passed under Section 5 must show “congruence and proportionality” between the constitutional injury and the remedy Congress chose. Legislation that sweeps too broadly crosses from enforcement into substance, and the Court will strike it down.¹⁴

How the Amendment Became Law

Congress approved the amendment on June 13, 1866, and sent it to the states during one of the most volatile periods in American history.¹⁵ The former Confederate states had been placed under military rule, and Congress refused to seat their elected representatives until they ratified. Ratification became a condition of political survival rather than a voluntary choice.¹⁶ The three-fourths threshold was reached on July 9, 1868, and that date is recognized as ratification. Secretary of State William Seward issued an unconditional certification on July 28, 1868, after Congress resolved lingering questions about states that had tried to withdraw their earlier votes.¹⁷ More than a century and a half later, the Fourteenth Amendment remains the most litigated provision of the Constitution and the legal foundation for nearly every modern civil rights protection.

1
Cornell Law School Legal Information Institute. Citizenship Clause Doctrine
2
Justia U.S. Supreme Court Center. Elk v Wilkins, 112 U.S. 94 (1884)
3
Justia U.S. Supreme Court Center. Slaughterhouse Cases, 83 U.S. 36 (1872)
4
Cornell Law School Legal Information Institute. Marriage and Substantive Due Process
5
Legal Information Institute. Incorporation Doctrine
6
Justia U.S. Supreme Court Center. Obergefell v Hodges, 576 U.S. 644 (2015)
7
Supreme Court of the United States. Dobbs v Jackson Womens Health Organization, 597 U.S. 215 (2022)
8
Cornell Law School Legal Information Institute. 14th Amendment, U.S. Constitution
9
Legal Information Institute. Strict Scrutiny
10
Library of Congress. Fourteenth Amendment Section 2
11
Library of Congress. Fourteenth Amendment Section 3
12
Supreme Court of the United States. Trump v Anderson, 601 U.S. 100 (2024)
13
Cornell Law School Legal Information Institute. Public Debt Clause
14
Justia U.S. Supreme Court Center. City of Boerne v Flores, 521 U.S. 507 (1997)
15
National Archives. 14th Amendment to the U.S. Constitution: Civil Rights (1868)
16
U.S. Senate. Landmark Legislation: The Fourteenth Amendment
17
Library of Congress. Intro.6.4 Civil War Amendments (Thirteenth, Fourteenth, and Fifteenth Amendments)