The 14th Amendment, ratified by Congress on July 9th, 1868, represents a critical evolution of U.S. law fundamental to forming many of our civil and human rights. The basis of our current and contested rights is founded under Section 1 of the 14th Amendment which declares that “[n]o 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.”[i] However, this Amendment is not without controversy in its formation, passage, and legal application.
Following the end of the Civil War and the abolition of slavery through the ratification of the 13th Amendment in 1865, the U.S. sought to provide African Americans with equal status and citizenship under the law. U.S. Supreme Court cases such as Dredd Scott v. Sanford (1857) previously identified Black people as “a separate class of persons,” and many southern states restricted the newly freed African Americans’ civil rights through the passage of Black Codes. Proponents of civil rights demanded the necessity of a 14th Amendment that established equal rights for all.[ii] The passage of the 14th Amendment would serve as a way to overrule Dredd Scott v. Sanford and revoke the Black Codes and their denial of constitutional rights and freedoms of black citizens
The requirements for passing a Constitutional Amendment required 28 of the then 37 states to ratify, and most southern states refused to pass the Amendment. Those advocating for its ratification faced violence, persecution, and retaliation. [iii] One such instance of extreme racial violence occurred on May 1, 1866, when white mobs and police attacked Black communities in Memphis, Tennessee killing 46 African Americans.[iv] This massacre fueled outrage and promoted national support for the passage of the 14th Amendment.
One group cited an entirely different reason for opposing the 14th Amendment. For the first time, the 14th Amendment introduced the word “male” into the U.S. Constitution concerning voting rights which outraged women’s rights advocates. Some suffragists, including Mary Ann Shadd Cary and Julia Ward Howe, deemed supporting the guarantee of Black equality essential despite the flawed and exclusionary gendered distinction on voting rights. Others such as Susan B. Anthony and Elizabeth Cady Stanton sought to defeat the 14th Amendment for providing voting rights exclusively to men. This showcases the divisive nature of the women’s rights movement and the lingering racial discrimination prevalent among many advocates.[v]
Even with the 14th Amendment seeking to end racially discriminatory practices, this law did not necessarily function in practice at first. In Plessy v. Ferguson (1896), the Supreme Court upheld discriminatory Jim Crow Laws claiming that “separate but equal” distinctions did not violate the Equal Protection Clause of the 14th Amendment.[vi] This standard remained legal until its overruling in the Brown v. Board of Education (1954) Case which finally established “separate but equal” as in violation of the Equal Protection Clause.[vii]
Further landmark Supreme Court cases have continued to shape the civil rights background through the use of the 14th Amendment. Another significant Supreme Court case that recognized a violation of the Equal Protection Clause occurred in the Loving v. Virginia (1967) case which sought to further eliminate racially discriminatory practices by deeming the prohibition on interracial marriage unconstitutional.[viii] The ruling statement by Associate Justice Henry Blackmun in Roe v. Wade (1973) also relied on the 14th Amendment stating, “[t]his right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is,… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[ix] The Obergefell v. Hodges (2015) decision further relied on the 14th Amendment and its clause on substantive due process to require states to acknowledge and respect the validity of marriage licenses granted to same-sex couples.[x]
The recent Dobbs v. Jackson Women’s Health Organization (2022) decision overruled the precedent for the right to abortion access and reproductive healthcare established under Roe v. Wade. Further opinion statements from Justices Thomas and Alito establish that, in light of the Dobbs decision, other cases concerning substantive due process precedents such as Obergefell should be reconsidered.[xi] Thus, while the 14th Amendment has made incredible strides in providing equal rights and protection, it fails to encompass our nation’s current needs fully.
One way to enshrine greater protection for equal rights and anti-discrimination legislation is through the passage of the proposed Equal Rights Amendment. The current version approved by Congress in 1972 states, “[e]quality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”[xii] This amendment would further work towards the cause of guaranteeing equal rights, empowering Congress to promote gender equity legislation, and addressing systemic inequities in women’s everyday lives.[xiii] While representing just one more step in advancing our civil and human rights, the ratification of ERA represents an opportunity for crucial progress toward further advocacy in addressing our country’s standard of equal rights for all.
[i] National Archives, “14th Amendment to the U.S. Constitution: Civil Rights (1868),” National Archives (The U.S. National Archives and Records Administration, September 7, 2021), https://www.archives.gov/milestone-documents/14th-amendment#:~:text=No%20State%20shall%20make%20or.
[ii] “Reconstructing Citizenship,” National Museum of African American History and Culture, accessed July 8, 2024, https://nmaahc.si.edu/explore/exhibitions/reconstruction/citizenship#:~:text=Opposition%20to%20the%2014th%20Amendment.
[iii]National Archives, “14th Amendment to the U.S. Constitution: Civil Rights (1868),” National Archives (The U.S. National Archives and Records Administration, September 7, 2021), https://www.archives.gov/milestone-documents/14th-amendment#:~:text=No%20State%20shall%20make%20or.
[iv]“Reconstructing Citizenship,” National Museum of African American History and Culture, accessed July 8, 2024, https://nmaahc.si.edu/explore/exhibitions/reconstruction/citizenship#:~:text=Opposition%20to%20the%2014th%20Amendment.
[v] Jone Johnson Lewis, “Women’s Rights and the Fourteenth Amendment,” ThoughtCo, June 23, 2019, https://www.thoughtco.com/womens-rights-and-the-fourteenth-amendment-3529473.
[vi] Brian Fitzpatrick and Theodore Shaw, “Interpretation: The Equal Protection Clause | the National Constitution Center,” National Constitution Center, 2015, https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/702.
[vii] Ibid.
[viii] Ibid.
[ix] “Roe v. Wade, 410 U.S. 113 (1973),” Justia Law, 1973, https://supreme.justia.com/cases/federal/us/410/113/#:~:text=A%20person%20may%20choose%20to.
[x] Suzanne McGee, “5 Supreme Court Rulings Based on the 14th Amendment,” HISTORY, May 31, 2022, https://www.history.com/news/supreme-court-rulings-14th-amendment.
[xi] SUPREME COURT OF THE UNITED STATES, “Dobbs v. Jackson Women’s Health Organization,” June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
[xii] “Equal Rights Amendment,” Equal Rights Amendment, 2019, https://www.equalrightsamendment.org.
[xiii] Alex Cohen and Wilfred U. Codrington III, “The Equal Rights Amendment Explained,” Brennan Center for Justice, January 23, 2020, https://www.brennancenter.org/our-work/research-reports/equal-rights-amendment-explained.
By Julia Meyer, NOW Chapters Intern