Fourteenth Amendment

The Fourteenth Amendment contains a number of important concepts, most famously state action, privileges & immunities, citizenship, due process, and equal protection—all of which are contained in Section One.  However, the Fourteenth Amendment contains four other sections.  Section two deals with the apportionment of representatives to Congress.  Section Three forbids anyone who participates in “insurrection or rebellion” against the United States from holding federal office.  Section Four addresses federal debt and repudiates debts accrued by the Confederacy.  Section Five expressly authorizes Congress to enforce the Fourteenth Amendment “by appropriate legislation.”  The states ratified the Fourteenth Amendment in 1868 in the immediate aftermath of the American Civil War, along with the other Reconstruction Amendments—the Thirteenth and Fifteenth.

Citizenship

Also known as the Naturalization Clause, the Citizenship Clause is Section One of the Fourteenth Amendment. The clause conferred U.S. and state citizenship at birth to all individuals born in the United States who are not subject to foreign powers. Before the Fourteenth Amendment was added, citizens of states were automatically considered citizens of the United States. The 1857 case Dredd v. Scott held that African Americans were not U.S. citizens, even if they were free. The amendment guaranteed that everyone born or naturalized in the United States and under its jurisdiction would be a United States citizen. It also ensured that federal citizenship was also made primary, which meant that states could not prevent freed slaves from obtaining state citizenship and thus federal citizenship.

It was not entirely obvious what Congress meant by those who are not subject to foreign powers though. Beginning in 1870, Congress offered citizenship to a number of different Indian tribes, so members belonging to those tribes could become citizens if they desired. In Elk v. Wilson (1884), the Supreme Court held that children born to members of Indian tribes governed by local tribal governments were not United States citizens. Congress granted citizenship to Indians in 1924 when it passed the Indian Citizenship Act. The Supreme Court in United States v. Wong Kim Ark (1898) ruled that a child who was born in America to a non-United States citizen was a United States citizen.

State Action

The State Action Clause of the Fourteenth Amendment declares that a state cannot make any law that abridges the privileges or immunities of any citizen. Some of the questions that have been raised regarding state action are whether state action is only aimed at states and those acting under state authority as well as whether Congress’s power under the Enforcement Clause for the prohibitions against state action is limited to enacting laws against states. In the Civil Rights Cases (1883), the Supreme Court ruled that the Civil Rights Act of 185, which prohibited racial discrimination in public accommodations, was unconstitutional because it tried to regulate private actors. The Court decided in United States v. Guest (1966) that the Enforcement Clause gave Congress the power to regulate the private of individuals who conspired with state officials to deprive people of their rights under Section One of the Fourteenth Amendment. In later cases, the Courts tried to distance itself from the Guest decision, and in United States v. Morrison (2000), the Supreme Court rejected the Guest dictum and struck down part of the Violence Against Women Act that provided a federal that provided a civil remedy for victims of sex-related violence.

Now that the Supreme Court requires some kind of state action in order to enforce Section One of the Fourteenth Amendment, it is important to look at the cases it has decided to determine which cases constitute state action when private actors are involved. These cases usually involve private actors who perform public functions or exercise powers that are usually reserved solely for the state or when government and a private entity become intertwined to the point that the entity acts as the government. The Supreme Court has decided a number of cases ruling it was unconstitutional for private political parties to exclude blacks from primary elections for political candidates at the state’s general elections—Nixon v. Condon (1932), Smith v. Allwright (1944), and Terry v. Adams (1953). The Court has also ruled in Marsh v. Alabama (1946) and Evans v. Newton (1966) that the private actions of trustees of a company town or public park constitute state action.

Two key cases where the Court found there was an entanglement of government and private action were Burton v. Wilmington Parking Authority (1961) and Lugar v. Edmondson Oil Co. (1982). In Burton, the Supreme Court ruled that a restaurant that leased a space in a public parking garage that racially discriminated was state action. The Court decided in Lugar that it was state action when a private entity filed ex parte for a prejudgment attachment of a party’s property, which was carried out by the court clerk and sheriff. The Court also handled a number of cases where racial discrimination by private actors was permitted or enforced by state action, which seemed neutral. In Shelley v. Kraemer (1948), the Supreme Court decided that the judicial enforcement of a private restrictive covenant that prohibited non-Caucasian occupants violated equal protection to a black buyer even though enforcing private restrictive covenants was generally valid and enforceable. The Supreme Court in Reitman v. Mulkey (1967) struck down a California constitutional amendment that prohibited enacting any law that restricted an individual from refusing to sell land to a buyer for any reason. The Court’s argument seemed to be that the amendment to the state constitution was a state action violating equal protection.

In a number of cases, the Court has continued to limit state action claims against private individuals. In Jackson v. Metropolitan Edison Co. (1974), the Supreme Court ruled that Section One of the Fourteenth Amendment does not apply when electric utilities stop service to customers. The Court also determined in Flagg Brothers, Inc. v. Brooks (1978) that there was no Section One liability for a warehouseman selling stored property to make good back payments.

Privileges and Immunities Clause

There has been some debate over the meaning of the Privileges and Immunities Clause with several possible original meanings. A question arises as to whether the clause meant that all state laws should be applied equally to its citizens or that state laws should have certain substantive content. The substantive view can be further divided into two categories. One view is that these privileges and immunities include all of the rights in the Constitution, including the Bill of Rights. Thus, this view sees the purpose of the Privileges and Immunities Clause as applying all of the rights in the Constitution to all of the states. Another view is that it only meant to make the Bill of Rights applicable to the states.

Corfield v. Coryell (1823), an early case concerning the Privileges and Immunities Clause, discussed fundamental rights of all citizens that the clause was meant to protect. However, the view of Justice Washington that was expressed in Corfield was rejected by the Supreme Court in the Slaughter-House Cases (1873). In the Slaughter-House Cases, the Court held that the privileges of national citizenship were substantive, but they came about as a result of the federal government, the Constitution, or other laws. The fundamental natural rights were not included, and thus the equality function of the Immunities and Privileges Clause was taken over by the Equal Protection Clause and the substantive functions were taken by the Due Process Clause. Aside from one case that was later overruled, the Supreme Court did not use the Privileges and Immunities Clause as the basis for decisions until 1999 with Saenz v. Roe where California set welfare benefits for new residents at a certain level equal to what their former state provided for the first year of residency in California. The Court decided that part of the right to travel was for new citizens of a state to be treated like other citizens of the state.

Due Process Clause

The Fifth and Fourteenth Amendments both contain a Due Process Clause, although the Fourteenth Amendment applies to the states. The Supreme Court has interpreted the Due Process Clauses in both articles as having the same meaning, although this was at first disputed.

Procedural due process is the most widely accepted form of due process and required states to follow certain procedures before they can deprive individuals of life, liberty, and property. Although some argue that the Founders meant this list to be illustrative, the Supreme Court interpreted it literally and require an individual to show that the issue concerns their life, liberty, or property.

The Due Process Clause guarantees fairness to all individuals. This fairness might require different elements, such as a decision with substantial evidence to support it, an opportunity to be heard, and notice. As a basic rule, the more important the right, the stricter the process must be. The Supreme Court has defined what property and liberty interests are in different cases. In the case Board of Regents v. Roth (1972), the Court decided that an untenured professor had no property interest in his job after the college decided not to renew his contract because this was not a property interest according to the state’s laws.

The Supreme Court has tended to define liberty rather broadly and found its base in the Constitution; some of the basic liberties found by the Court include the freedom to travel, freedom from incarceration, freedom from physical violence and forced medical procedures, and freedom to live with and raise children. In order to deprive individuals of basic liberties, the state has to show that they followed due process. Constantineau v. Wisconsin (1971) was a case where it was ruled that an individual had to be afforded a hearing before he or she could be put on a list of “excessive drinkers” put out by the government. However, in Paul v. Davis (1976), the Court found that the government distributing a list of active shoplifters did not deprive those individuals of their basic liberties. The Court found that a state could not transfer an inmate in solitary confinement in a state prison to a mental hospital where the prisoner would undergo behavior modification without affording due process.

The Supreme Court has balanced the interests of the government and the individual to determine what specific due process procedures need to be followed in that particular circumstance. In Mackey v. Montrym (1979), the Court determined that the state could suspend driver’s licenses of individuals who refused to take a breathalyzer test after a car accident. The Supreme Court gave a lot of weight to the state’s interests in keeping drunk drivers off roads as quickly as possible. The Court considered whether the school district could suspend employees without pay until hearings to determine if the employees had violated the district’s rules in Cleveland Board of Education v. Loudermill (1985). The Supreme Court rejected the Board of Education’s argument that it never had to provide a hearing, so it could suspend an employee without pay before a hearing.

Although procedural due process is widely accepted, substantive due process as a concept has been an issue of debate. Modern debate regarding the substantive due process clause tends to limitations on the substance of legislation aside from legislation that affects procedural due process. Some proponents of substantive due process try to tie it to a “law of the land” theory. The first case the Court invalidated under the Due Process Clause of the Fifth Amendment was Dredd Scott v. Sanford (1857), although the Court did not expand on the clause in the opinion.

Starting in the late 1800s, the Supreme Court used substantive due process to uphold a number of economic rights. In Allgeyer v. Louisiana (1897), the Court held that the right to make contracts was a liberty protected by the Due Process Clause. Lochner v. New York (1905) was a famous case where the Court struck down a law regulating the hours that bakers could work because it interfered with the right-to-contract doctrine. The Supreme Court continued with the liberty-of-contract doctrine in Adkins v. Children’s Hospital of D.C. (1923) by ruling that a minimum wage law for nurses violated the Due Process Clause. The Court also used substantive due process to protect other fundamental rights, such as the right for parents to control the education of children in Pierce v. Society of Sisters (1925).

After the New Deal and the Constitutional Revolution of 1937 when the Court started to defer more frequently to Congress on issues of economic legislation the interpretation of the Due Process Clause changed.  The first example of the Supreme Court rejecting substantive due process as a reason for reviewing economic legislation was in West Coast Hotel Co. v. Parrish (1937). United States v. Carolene Products Co. (1938) was a case where the Court decided that as long as economic regulations passed the rational basis test then they would not violate the Due Process Clause. The Court was moving its focus from economic legislation to use heightened scrutiny for other fundamental rights.

Over the years, new fundamental rights protected by under substantive due process have been discovered, including a right to privacy and the right to marry. In Griswold v. Connecticut (1965), the Court ruled that the right to privacy included the right for a married couple to use contraception.  The right to privacy was used by the Court in Roe v. Wade (1973) to permit abortion. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) involved a challenge to the constitutionality of several state regulations involving abortion. This seminal case provided the first opportunity for Roe to be overturned, but the Court upheld abortion under a theory of a woman’s rights weighed against a state’s interests. The theory from Casey was extended in Lawrence v. Texas (2003) to include private homosexual acts. The Supreme Court did establish a limit to the doctrine when in Washington v. Glucksberg (1997) it ruled that assisted suicide as not a liberty upheld under the Due Process Clause.

Before the Fourteenth Amendment, the widespread view was that the Bill of Rights only restricted the federal government, which the Court upheld in the case Barron v. City of Baltimore (1833). Some thought that the Privileges and Immunities Clause was supposed to undo Barron and apply the Bill of Rights to the states. However, after the Slaughter-House Cases (1873), the Supreme Court was stripped of most of its power, so the Bill of Rights would have to be applied to the states some other way.

The Supreme Court ruled in Chicago, Burlington & Quincey Railroad Co. (1897) that the Due Process Clause demanded that the states provide just compensation when acquiring private property for public use. The Court next decided in Gitlow v. New York (1925) that free speech principles like those in the First Amendment would be applied to the states through the Fourteenth Amendment. Beginning in the 1940s, the idea that the Due Process Clause of the Fourteenth Amendment incorporates provisions of the Bill of Rights gained popularity, so today there tend to be a few notable exceptions. This includes the right to indictment by jury trial in the Fifth Amendment, guarantee of a jury trial in civil cases from the Seventh Amendment, and the Second and Third Amendments. Eventually, other rights that were not in the Bill of Rights were added.

Equal Protection

The Equal Protection clause of the Fourteenth Amendment is one of the most litigated sections of the Constitution. Since the Fourteenth Amendment was ratified, the Supreme Court has developed a three-tier analysis approach. Under this system, with a challenged classification, the government has to show that this classification serves a compelling state interest and that the legislation is necessary to serve the interest. Suspect classifications are race, national origin, religion, and alienage unless it falls into the political community exception. The Court also established classifications that burden fundamental rights and would be subject to strict scrutiny, including interstate migration, denial or dilution of voting, access to courts, and other fundamental rights. For the middle tier of scrutiny, the government has to show that the classification serves an important state interest and is at least substantially related to serving the interest.  The classifications that fall under the middle tier are gender and illegitimacy. The third tier is minimum or rational basis scrutiny, which applies to the issues that are not covered under the other categories.

 Most issues are only subject to rational review. In Railway Express v. New York (1949), the Supreme Court upheld a New York City ordinance that prohibited advertising on commercial vehicles unless that advertising pertained to the owner’s business. Although the ordinance was underinclusive because it only applied to some vehicles, it passed the rational review test. Kotch v. Bd. of River Port Pilot Commissioners (1947) was another case where the Supreme Court upheld a law that in effect prevented anyone except a relative or friend of current riverboat pilots from entering the profession. In some cases, despite the deference given by the rational basis test, laws are still struck down. For instance, in Plyler v. Doe (1982), the Supreme Court struck down the Texas law that denied children of illegal immigrants a public school education. Cleburne v. Cleburne Living Center (1985) involved a challenge to a zoning decision that denied a permit to build a home for the mentally challenged, and the Court struck this down as well due to the substantial harm to the plaintiffs and weak state interest.

The middle tier of review was developed during the 1970s for gender and legitimacy of children. In the early 1900s, the Court saw itself as a protector of women while restricting them from various activities. Goesaert v. Cleary (1948) upheld a state law that did not allow a woman to be a bartender except at a business owned by her husband or father while the Court upheld an automatic exemption for women from jury duty in Hoyt v. Florida (1961) with the justification that women are the center of the family. It was not until 1971 in Reed v. Reed that the Court overturned sex classification legislation when they struck down a state law naming a male heir as the administrator of an estate when none was named in a will finding the state had no rational basis for the law. The Supreme Court went from a rational basis analysis to some of the judges applying strict scrutiny in Frontiero v. Richardson (1973) and striking down a law that required female military members to prove their spouses were dependents without requiring male members to do the same. The Court finally settled on an intermediate scrutiny standard in Craig v. Boren (1976) where they struck down a state law that banned 18 to 20 year-old men from buying alcohol while not applying the same restriction to women. The cases that the Supreme Court has decided regarding gender demonstrate that state’s interest needs to have an “exceedingly persuasive justification.”

In the 1980s, the Supreme Court started looking at separation of genders in education instead of racial segregation in public schools. The Court’s ruling in Mississippi University of Women v. Hogan (1982) determined that Mississippi’s policy of only allowing females to enroll in the nursing program violated equal protection because women were not disadvantaged when it came to getting nursing jobs. The Supreme Court decided in United States v. Virginia (1996) that Virginia violated the Equal Protection Clause by denying women entry to the Virginia Military Institute while also deciding that a similar program for women was not substantially equal. 

Cases that involve suspect classifications are subject to closer scrutiny. The Supreme Court laid out the rationale for this level of scrutiny in a footnote of the case Carolene Products v. United States (1938). Usually, strict scrutiny results in the invalidation of the legislation. In Loving v. Virginia (1967), the Court struck down Virginia’s miscegenation law under strict scrutiny. Korematsu v. United States (1944) in which the Court upheld a military exclusion order against Japanese-Americans during World War II was one of the few cases where legislation passed the strict scrutiny test.

Race was not always given stricter scrutiny though as seen in segregation cases. In Plessy v. Ferguson, a case involving a Louisiana law that required the segregation of train cars for blacks and whites, the Supreme Court upheld the law. The NAACP started to attack the separate but equal doctrine established by Plessy starting in the 1930s. The Court agreed with the NAACP’s argument that Missouri’s refusal to provide legal education to black students in the state and instead paying to send them to schools in other states denied them equal protection in Missouri ex rel. Gaines v. Canada (1938). The Court decided the landmark case Brown v. Board of Education of Topeka in 1954 ruling that racially separated schools are inherently unequal. In Brown II, which was decided in 1955, the Supreme Court outlined a plan for the desegregation of schools, but schools dragged their feet despite the ruling, and a decade later a fraction of the schools were integrated. In Griffin v. School Board of Prince Edward Cape (1964), the Court ruled that it violated the Equal Protection clause for a school to close down to prevent from having to integrate.

Sometimes, statutes are neutral on their face, but it is alleged they are applied in a racially discriminatory manner. This is a much harder analysis than the traditional strict scrutiny case. The first case of this type that the Supreme Court heard was Yick Wo v. Hopkins (1886), which involved a Chinese-American challenging the San Francisco Board of Operator’s decision not to give him a license. Yick Wo claimed discrimination pointing out that the Board gave licenses to 79 out of 80 non-Chinese applicants but denied 199 out of 200 Chinese applicants. Due to the evidence, the Court accepted that this was a prima facie case of discrimination.

As noted, alienage is sometimes a protected class. The Equal Protection Clause does not distinguish between the citizens and non-citizens, which brings up the questions of what level of judicial scrutiny should be used when laws are passed treating the citizens and non-citizens differently. In Graham v. Richardson (1971), the Supreme Court, using a strict scrutiny analysis, struck down a law that made citizenship a condition of paying state welfare. The Court did not find that preserving limited state resources for its citizens was a strong enough justification. Application of Griffiths (1973), the Supreme Court used strict analysis and struck down a law that restricted state bar membership to citizens.

Although strict scrutiny was used in these earlier cases, the Supreme Court carved out an exception to the rule of treating alienage classification as requiring strict scrutiny. Starting in the late 1970s, the Court decided the rational basis test should be applied when the classification involves the operation of the state as a government entity. The Supreme Court used the rational basis to uphold state laws that prohibited non-citizens from becoming police officers and parole officers. In Ambach v. Norwick (1978), the Court upheld a law that required school teachers to be citizens because of their role in instilling American values in children and their governmental role. The Court did establish a limit to this exception in Bernal v. Fainter (1984) where they overturned a state law that required notary publics to be citizens.

There is also a different standard of scrutiny applied by the Court to classifications made by the federal government. In Matthews v. Diaz (1976), a less strict standard was applied when the Court upheld a law that required non-citizens to reside in the country for five continuous years before they would be eligible for federal medical insurance.

In Washington v. Davis (1976), Davis challenged the city’s practice of making police force applicants pass a verbal skills test. Due to their better performance, whites comprised 60% of those who passed the test even though they were only 40% of the applicants. The Court decided that unless there was proof that the city used the test because they wanted to discriminate against black applicants then they only needed to show they had a rational basis for using the test. The Supreme Court set out a standard that plaintiffs have to meet to prove a discriminatory purpose in Arlington Heights v. MHDC (1977). Arlington Heights says that to establish a prima facie case of an equal protection violation, the plaintiff has to show that discrimination was a motivating factor in the decision, which can be done with legislative history, departure from usual procedures, or legislative history. After this has been shown, the burden shifts to the city to demonstrate that they would have reached the same result without the discriminatory motive. The case Batson v. Kentucky (1986) established that excluding a potential juror due to race is an Equal Protection violation, but this can be difficult to prove in practice

The flip side of the issue of classifications based on race is the question of whether the government can constitutionally do so to benefit minorities that were previously discriminated against. The first case that came before the Supreme Court was Bakke v. Regents Univ. of California (1978) where a white applicant claimed that he was denied admission to medical school even though his scores were significantly better than minority applicants. Although the Court ruled for Bakke because the school had a two-track admission system, Powell’s concurring opinion indicated that racial diversity in higher education was a compelling state interest. The Supreme Court heard a challenge to the University of Michigan’s admission practice, which automatically awarded points to underrepresented minorities, in Gratz v. Bollinger (2003) and ruled that it was unconstitutional because of the overly automatic system. The same year, the Court also decided a case regarding the University of Michigan law school, Grutter v. Bollinger, ruling that universities could use race as a component in determining admissions, although it narrowly upheld the university’s policy. The Supreme Court decided two cases in 2007, Meredith v. Jefferson County and Parents Involved v. Seattle Schools, where it struck down programs that took into account the race of students when assigning them to schools in order to create racially balanced student bodies.

The Supreme Court revisited the issue again in Fisher v. University of Texas (2013) when it reviewed a challenge to the university using race as part of a two-pronged admission process. The first prong was race blind and automatically admitted the top 10% of Texas high school classes.  The Court took a firmer stance ruling that the lower courts erred in not applying strict scrutiny to the university’s policy. After the Supreme Court struck down the University of Michigan’s admission policy in Grutter, the state’s voters passed a constitutional amendment that prohibited racial preferences in school admissions. The constitutional amendment was challenged in Schuette v. Coalition to Defend Affirmative Action (2014) as groups argued that using a constitutional amendment instead of allowing the issue to be more easily reversed in state legislature was a violation of Equal Protection. The Court’s decision affirmed the right of state voters to decide whether they want to extend racial preferences in admissions.

In addition to education cases, the Court also heard cases involving set-aside programs where government money was put aside for minority contractors when it came to government building projects. In Richmond v. J.R. Croson (1989), the Supreme Court made it clear that such government set-asides are only acceptable to address past racial discrimination if it was the government entity implementing the set-aside that committed the discrimination.

Classifications based on wealth have only been granted a rational basis review. Generally, the government just needs to show that the law is rationally related to serving a legitimate state interest. However, a higher level of scrutiny might be used if the government has placed a financial burden on individuals trying to exercise their fundamental rights.  In Harper v. State Board of Elections (1966), the Supreme Court struck down state laws that impose poll taxes on voters. Other state laws that were struck down include legislation imposing large fees for getting one’s name listed on a public office ballot in Bullock v. Carter (1972) and a filing fee for individuals trying to get a divorce in Boddie v. Connecticut (1971).

 Furthermore, the Court also struck down a fee for parents who are looking for judicial review of a decision terminating parental rights in M.L.B. v. S.L.J.  (1996). In M.L.B., the Supreme Court determined that the savings to the state was not enough to justify the burden it imposed on individuals who are facing losing their parental rights. In Griffin v. Illinois (1956), the Court decided that states must provide free court transcripts to indigents and to provide free lawyers to indigents who are appealing criminal convictions in Douglas v. California (1963). Additionally, the Court ruled in 1985 in the case Ake v. Oklahoma that free psychiatric assistance has to be provided to indigent defendants when significant evidence of mental illness is available that could assist in his defense.

The right to vote is another fundamental right, which the Court has chosen to apply strict scrutiny, although in practice it is not as stringent as the standard applied in suspect classification cases. Reynolds v. Sims (1964) involved a challenge to Alabama’s misapportionment scheme. The state’s program gave rural voters more representatives per capita than it gave urban voters, which the Court ruled violated the Equal Protection Clause. In Harper v. Virginia Board of Election (1966), the Supreme Court struck down a state tax that required voters to pay a small amount to vote in state elections. Strict scrutiny was also used in Kramer v. Union Free School District (1969) to invalidate a state voting restriction that only allowed persons who owned or leased property in a school district or had children who attended school in that district to vote in school board elections. The Supreme Court decided the controversial case Bush v. Gore in 2000, ending the recount of votes in Florida, although most of the judges agreed that there was a problem with Florida’s use of different counting polices in various counties. In 2008, The Court upheld in Crawford v. Marion County Election Board a strict voter identification law that  required voters to present a passport, driver’s license, or state-issued photo identification card.

Although the Court has used the Equal Protection Clause to strike down laws relating to voting and access to justice, they have refused to extend it to provide a certain level of welfare, housing, or education to all citizens. The Court refused to strike down Maryland’s method of calculating welfare benefits to large families in Dandrige v. Williams (1970) despite arguments that it violated the Equal Protection Clause. The Supreme Court in San Antonio v. Rodriquez (1973) ruled that Texas’s method of funding public schools through property taxes did not violate the Equal Protection Clause even though this resulted in more money being spent per pupil in richer school districts. The decision in Rodriquez demonstrated the Court’s intention that the Equal Protection Clause would be confined to rights implicitly or explicitly guaranteed in the Constitution. The Court’s decision along this line can be seen in Kadrmas v. Dickinson Public Schools (1988) where it determined that a school district charging parents part of the cost for transportation by bus to the public school was not a violation of equal protection of the laws.

Apportionment

Section Two of the Fourteenth Amendment deals with apportionment of representatives from the southern states. The abolition of slavery meant that the representation of the former slave in the House of Representatives increased. This clause of the Fourteenth Amendment was drafted to encourage Southern states to grant blacks the right to vote without forcing them to do so.  Congress did not really try to enforce the clause. In Saunders v. Wilkins (1945), a candidate for Congress from Virginia sued under Section Two of the Fourteenth Amendment trying to force the state to adopt an at-large electoral system because the state was not eligible for the nine electoral seats it had been granted after the 1940 census according to the poll tax. The Court dismissed the case as a political question. This section is still in operation and would operate in future cases of rebellion. The Supreme Court affirmed in Richardson v. Ramirez (1974) that under Section Two, states can prohibit convicted felons from voting after serving their prison sentence.

Disqualification for Rebellion  

One of the most controversial sections of the Fourteenth Amendment was Section Three, which disqualified the former rebels from serving as state or federal officials. Some saw it as vindictive action against these individuals. The clause was also tempered from the initial wording. Although the clause was written in the context of the Civil War, it would still apply for future rebellions.

Debt

The fourth section of the Fourteenth Amendment involved making the national debt sacrosanct and repudiating Confederate debt. In Branch v. Haas (1883), federal courts decided that contracts involving Confederate debt would not be enforced although contracts that involve Confederate currency are enforceable to prevent injustice to those who were required to accept them during the Civil War. The issue of the repudiation of the United States’ debt came up again in the Gold Clause Cases (1935). In those cases, the Supreme Court ruled that Congress exceeded its authority by refusing to pay bonds in gold, but they could not recover because the damage was only nominal.

Enforcement Clause

The Enforcement Clause grants Congress the power to pass laws that make Sections One through Four of the Fourteenth Amendment effective. One of the limitations on the Enforcement Clause is that Congress is only permitted to enforce the provision through appropriate legislation. In Katzenbach v. Morgan (1966), the Supreme Court’s ruling suggested that Congress could define the substantive scope of the Fourteenth Amendment, but this reading has been rejected by more recent opinions. In the Civil Rights Cases (1883), the Court ruled that Congress did not have the power to legislative against discrimination by private individuals because Section One of the Fourteenth Amendment only applied to actions committed by a state or state agents. Congress is allowed to pass legislation prohibiting state actions that generally violate the Fourteenth Amendment even if they do not always. In Oregon v. Mitchell (1970), there was a challenge to Congress banning literacy tests for voting. The ban was upheld by the Court because they determined that literacy tests tended to be abused so often that they should be completely banned. Furthermore, in City of Boerne v. Flores (1997), the Supreme Court declared the Religious Freedom of Religion Act, where Congress tried to use the Enforcement Clause to overturn an earlier Court decision regarding the Free Exercise Clause, was unconstitutional. If Congress wants to enact its power under the Enforcement Clause of the Fourteenth Amendment, the legislation they are proposing needs to remedy or prevent actions that are prohibited by the Fourteenth Amendment.