14. Amendment to the United States Constitution
The 14th Amendment to the Constitution of the United States of America was passed as a result of the American Civil War . It contains the equality clause, the right to a fair trial in the states and the basics of citizenship law ( jus soli ). It was proposed for adoption on June 13, 1866 and ratified on July 28, 1868.
The Amendment provides a broad definition of US citizenship . It promises all individuals (and not just citizens) equal protection under the laws of the United States , which are the jurisdictions of the various states . The main concern of the authors was that equivalent protection be established regardless of race .
The first section of the 14th amendment, formulated in a very abstract and general manner, became more effective in American jurisprudence in the 20th century than any other part of the constitution. Above all, the very broadly interpretable terms of the “privileges and immunities of citizens”, the “ due process of law ” - reproduced below in German only approximately as “ ordinary court proceedings according to law and order ”, so that “ exercise of state power only on the basis of the constitution and of formally and materially constitutionally enacted laws "is an approximate translation - and the" equal protection of the laws "have been used time and again to take legal action against all kinds of discrimination or to postulate the legal protection of fundamental rights that are provided by the constitution not be explicitly mentioned. The direct binding force of most of the fundamental rights named in the original text of the Constitution and in the Bill of Rights not only with regard to the legislative activity of Congress expressly mentioned there , but also with regard to acts of the executive branch and the institutions of the individual states was justified by this article .
Citizenship and Civil Rights
The first section of the addendum defines citizenship and requires states to grant citizenship rights.
- Section 1 . All individuals born or naturalized in the United States and under their jurisdiction are citizens of the United States and the state in which they are resident. No state may enact or enforce laws that limit the privileges or freedoms of citizens of the United States, and no state may deprive anyone of the life, liberty, or property of any person or give any equivalent protection to anyone within its jurisdiction without due process fail the law.
Definition of the term "citizen"
The first section defines who is a citizen of the United States and states that no state can pass laws that curtail the rights of any citizen or person under US jurisdiction. This definition also reflected the withdrawal of a decision by the Supreme Court in the Dred Scott v. Sandford from 1857. In this case, it was first decided that African-Americans were not and could never become citizens of the United States. It was further decided that they would not enjoy the privileges or immunities that come with citizenship.
The phrase “who were born in the United States” was already controversial during the debate in the Senate. President Andrew Johnson , Chairman of the Judiciary Committee Senator Lyman Trumbull , and two other Senators insisted that every child born in the United States, except as discussed below, is an automatic citizen. Senator Edgar Cowan from Pennsylvania disagreed with his “Pennsylvania Germans”, but not with “Asians and Hottentots.” This discussion concerned immigrants who were legally residing in the USA, as there was the problem of illegal ones Immigration did not exist then; a few historians and legal scholars propose that the children of illegal immigrants born in the United States could therefore not invoke the birthright. This is countered by the unambiguous text of the 14th Amendment and the interpretative judgments of the Supreme Court of the United States , in particular the United States v. Wong Kim Ark (1898).
Wong was the son of Chinese immigrants, born in San Francisco in 1873, who could not be naturalized because of the Chinese Exclusion Act (1882). After visiting relatives in China, he was not allowed back to the United States in 1895, arguing that he was Chinese and not American. The Supreme Court confirmed with a majority of 6 to 2 the jus soli (whose soil you were born on), that it had to be seen in the light of English common law and previous case law in the USA, and that laws, including the Chinese exclusion Act "... not to contain the intention (of the Constitution) or to impair its effect, but must be interpreted and carried out with due regard to its provisions."
In Wong , and also today in the debate about the US-born children of illegal immigrants, the second part of the first sentence plays a major role: “All persons who are born in the United States ... and are under their jurisdiction. .. ". The authors of the 14th Amendment and all eight judges in Wong agreed that the persons who are not under the jurisdiction of the United States are ambassadors, non-American embassy staff, foreign members of the government and noble houses on state visits. In order to reappoint the aforementioned Senator Edgar Cowan from Pennsylvania, "the son of the Hottentot King, who was born in the United States," is not automatically an American citizen and, which has reassured him, cannot be elected president.
Since the 1990s, and intensified after 2009, there have been repeated attempts to propose legislation or a constitutional amendment in Congress to abolish automatic citizenship rights for US-born children of illegal immigrants, but have always been unsuccessful.
Congress also passed the 14th Amendment in response to the Black Codes passed by some southern states to end slavery through the 13th Amendment. These laws attempted to place freed slaves in their previous, almost lawless position. The laws should also prevent ex-slaves from filing or giving evidence in court.
The equal treatment clause actually had this effect in the decades after the Civil War, when the Supreme Court overturned laws preventing African Americans from serving as jurors or discriminating against Americans with Chinese roots who worked in laundries. However, the Supreme Court limited the scope of the amendment in the Slaughterhouse Cases by noting that the clause on privileges and immunities did not create new federal laws.
In the case of Plessy vs. Ferguson made it clear to the Supreme Court that states could uphold racial segregation as long as they grant those affected equal basic rights. Some have argued that the equal treatment clause was not intended to prohibit racial segregation. They related to debates in Congress, in which a distinction was made between civil rights, political rights and social rights for the 14th Amendment.
Social rights included the right to mixed marriage and were probably the main reason for racial segregation. Political rights were, for example, the right to vote. What was called civil rights was more restricted than one would think today. Civil rights included issues such as equal treatment in criminal and civil courts. Ultimately, political rights were not adopted with the ratification of the 14th Amendment, but with the ratification of the 15th Amendment, which provided for the right to participate in elections. Social rights only became apparent after the judgment in the Loving v. Virginia (1967) recognized. In this trial, the court ruled that laws against mixed marriage were unconstitutional.
Allocation of representatives
The second section introduces rules for the allocation of representatives in Congress:
- Section 2 . The mandates of representatives are distributed to the individual states in proportion to their number of inhabitants, whereby in each state the total number of all persons with the exception of the non-taxed Indians is used. If, however, the right to vote in any election to determine the electors for the President and Vice President of the United States, the MPs in Congress, the administrative and judicial officers of a state or the members of its legislature, any male residents of that state who are over twenty-one years of age and If you are a citizen of the United States, are denied or restricted in any way, except for participation in a riot or any other crime, the base number for representation there is to be reduced in the same proportion as the number of such male citizens to the total number the male citizen has been in this state for over twenty-one years.
The so-called three-fifths clause of the constitution, according to which "all other persons" without the right to vote, i.e. the slaves, 60% of whom were included in the number of inhabitants of a state, which is decisive for the number of seats in the House of Representatives, was not abolished, but made ineffective . The rules of this section are essentially relevant to this day.
"Non-taxed Indians" were tribes who lived on their own territories and tribesmen who otherwise settled; in the 1870 census, 8 percent of all Indians were "taxed". Through military service, marriage to whites, and the Dawes Act (1887), Indians could be naturalized. Indians were granted automatic full citizenship through the Indian Citizenship Act in 1924 and have been counted ever since.
The very difficult to understand second sentence of the section was intended to ensure that blacks' right to vote was not curtailed; only someone convicted of a crime could lose the right to vote. Should blacks be excluded from the right to vote in one state, however, the number of those excluded should be subtracted from the number of remaining eligible voters. Since the lower number was then to be used to calculate the number of MPs the state was allowed to send to the House of Representatives, this was theoretically a severe penalty. In practice it was never used because in the reallocation of MPs in 1873 following the 1870 census, Congress could not find enough misconduct to change the result.
Together with the 15th Amendment to the Constitution of the United States of 1870, the third and last of the so-called Reconstruction Amendments , the right to vote for blacks was to be ensured. However, this was subverted in the southern states from around 1890 to around 1965 by the so-called Jim Crow laws . Tricky, superficially racially neutral legal constructions, to which some poor whites also fell victim, and which were often invented arbitrarily in individual polling stations, e.g. For example, taking a spelling or reading test in places where there was no general elementary education, or asking to recite the United States Constitution by heart, or, as the culmination of humiliation, being asked how many coins were in a mason jar next to the ballot box . When voting, a high “voting tax” was often due which was not required of whites. The simplest and most common means of electoral repression in some regions was the threat or use of violence, and after some time, until the beginning of the civil rights movement, the memory of the violence was reason enough not to vote in parts of the black population .
The Jim Crow laws were first softened by courts from the mid-1950s, then weakened by the Civil Rights Act of 1957 , which was supposed to guarantee the right to vote but was found to be ineffective, and then finally by the 1960s 24. Amendment to the United States Constitution and various civil rights laws abolished.
The restriction mentioned here to "male persons" as voters was later abolished by the 19th Amendment to the Constitution of the United States in 1920; the voting age mentioned here of twenty-one years was lowered to eighteen years by the 26th Amendment to the United States Constitution in 1971.
Dealing with the employees of the Confederate States of America
The third section banned former Confederate officials who had sworn an oath on the United States Constitution before the American Civil War from returning to office for the United States after the war, as they were viewed as traitors.
- Section 3 . No one may be a Senator or MP in Congress, or electoral vote for President or Vice President, or hold any civil or military office in the service of the United States or any state, after serving as a member of Congress, or as an official of the United States, or as a member has been sworn in by the legislature of any state or as an administrative or judicial officer in any state to comply with the United States Constitution, has participated in an uprising or rebellion against it, or has assisted or aided its enemies. But the Congress can lift this inability to office with a two-thirds majority in either house.
The fourth section annulled all debts that the Confederate States had incurred during their existence, so that their creditors could no longer collect their claims. At the same time, he emphasizes the validity of the northern states' war debts.
- Section 4 . The legal validity of the United States' legally authorized national debt, including the obligations arising from the payment of pensions and special allowances for participating in the suppression of insurgency and rioting, must not be questioned. However, neither the United States nor any state shall assume or redeem any debt or liability arising out of aiding an insurrection or insurrection against the United States, or any claim for compensation for the loss or release of a slave; rather, all such debts, liabilities and claims are illegal and void.
Section 5, also known as the Enforcement Clause of the Fourteenth Amendment, allows Congress to legislate to enforce the other provisions of the Amendment. In the Civil Rights Cases (1883) the Supreme Court interpreted Section 5 narrowly, stating that "The legislation that Congress may pass on this behalf is not general legislation on citizens' rights, but rather corrective legislation". In other words, the amendment empowers Congress to legislate only to combat violations of rights protected in other sections.
- Section 5 . Congress has the power to enforce the provisions of this article through appropriate law.
Proposal and ratification
Congress proposed the 14th Amendment to the Constitution for ratification on June 13, 1866. At that time there were 37 states. Ratification (under Article 5 of the American Constitution) by 28 of these states would have made this amendment valid. By July 9, 1868, 28 states had ratified the Amendment:
- Connecticut (June 25, 1866)
- New Hampshire (July 6, 1866)
- Tennessee (July 19, 1866)
- New Jersey (September 11, 1866)
- Oregon (September 19, 1866)
- Vermont (October 30, 1866)
- Ohio (January 4, 1867)
- New York (January 10, 1867)
- Kansas (January 11, 1867)
- Illinois (January 15, 1867)
- West Virginia (January 16, 1867)
- Michigan (January 16, 1867)
- Minnesota (January 16, 1867)
- Maine (January 19, 1867)
- Nevada (January 22, 1867)
- Indiana (January 23, 1867)
- Missouri (January 25, 1867)
- Rhode Island (February 7, 1867)
- Wisconsin (February 7, 1867)
- Pennsylvania (February 12, 1867)
- Massachusetts (March 20, 1867)
- Nebraska (June 15, 1867)
- Iowa (March 16, 1868)
- Arkansas (April 6, 1868)
- Florida (June 9, 1868)
- North Carolina (July 4, 1868, after the amendment was initially rejected on December 14, 1866)
- Louisiana (July 9, 1868, after the amendment was initially rejected on February 6, 1867)
- South Carolina (July 9, 1868, after the amendment was initially rejected on December 20, 1866)
However, on January 15, 1868 , Ohio passed a resolution withdrawing ratification. The New Jersey Parliament also attempted to repeal ratification on February 20, 1868. The Republican Governor of New Jersey, Marcus Lawrence Ward , vetoed this withdrawal on March 5, 1868. On March 24, 1868, Parliament overrode this veto. Accordingly, US Secretary of State William H. Seward certified on July 20, 1868 that the constitutional amendment would become part of the American constitution if the planned repealments do not become legally binding. Congress responded the following day that the amendment was part of the constitution and ordered Seward to promulgate the amendment.
Meanwhile, two other states ratified the amendment:
- Alabama (July 13, 1868, date of ratification approved by the governor)
- Georgia (July 21, 1868, after the amendment was initially rejected on November 9, 1866)
Therefore, on July 28, 1868, Seward was able to unconditionally certify that the constitutional amendment was part of the American constitution, without having to take into account the enforcement of the withdrawals by Congress.
Finally, there were further, purely symbolic ratifications and withdrawals:
- Oregon (withdrew the Amendment October 15, 1868)
- Virginia (October 8, 1869, after the amendment was initially rejected on January 9, 1867)
- Mississippi (January 17, 1870)
- Texas (February 18, 1870 after the amendment was initially rejected on October 27, 1866)
- Delaware (February 12, 1901, after the amendment was initially rejected on February 7, 1867)
- Maryland (1959)
- California (1959)
- Oregon (1973 after amendment was withdrawn October 15, 1868)
- Kentucky (1976, after the amendment was initially rejected on January 8, 1867)
- New Jersey (2003, after amendment was withdrawn in 1868)
- Ohio (2003 after amendment was withdrawn January 15, 1868)
Relevant legal proceedings
- 1857: Dred Scott v. Sandford
- 1873: Slaughterhouse Cases
- 1880: Strauder v. West Virginia
- 1883: Civil Rights Cases
- 1886: Yick Wo v. Hopkins
- 1896: Plessy v. Ferguson
- 1898: United States v. Wong Kim Ark
- 1905: Lochner v. new York
- 1908: Berea College v. Kentucky
- 1917: Buchanan v. Warley
- 1923: Meyer v. Nebraska
- 1925: Gitlow v. new York
- 1925: Pierce v. Society of Sisters
- 1932: Powell v. Alabama
- 1948: Shelley v. Chandler
- 1954: Brown v. Board of Education
- 1962: Baker v. Carr
- 1965: Griswold v. Connecticut
- 1966: Sheppard v. Maxwell
- 1967: Loving v. Virginia
- 1970: Goldberg v. Kelly
- 1973: Roe v. calf
- 1974: Goss v. Lopez
- 2000: Bush v. Gore
- 2003: Lawrence v. Texas
- 2015: Obergefell v. Hodges
- Kurt T. Lash: The Fourteenth Amendment and the Privileges and Immunities of American Citizenship. Cambridge University Press, Cambridge 2014, ISBN 978-1-107-02326-0 .
- Charles Wallace Collins: The Fourteenth Amendment and the States. Springer, New York 2013, ISBN 978-1-4757-1444-9 .
- ↑ Quoted from Klaus Stern : The constitutional law of the Federal Republic of Germany - Volume I , CH Beck, 1984, § 20 III.
- ↑ Scholar praises 14th Amendment as "real" Constitution Garrett Epps in law.duke.edu of February 15, 2008, retrieved on December 18, 2010
- ↑ Marching Toward Justice: The History of the 14th Amendment to the US Constitution ( Memento of July 8, 2010 in the Internet Archive ) Lawrence C. Mann, M. Chiquita McKenzie on keithcollection.wayne.edu (booklet of the Damon J. Keith Law Collection of African American Legal History, Wayne State University, Detroit, Michigan) (PDF; 876 kB) accessed on December 18, 2010 (English)
- ^ A Modern Supreme Court in a Modern World Charles P. Curtis in 4. Vanderbilt Law Review, p. 427 (1950–1951), accessed December 18, 2010 (English)
^ Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 498 . The debate included the following exchange of words:
Mr. Cowan: "I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?"
Mr. Trumbull: "Undoubtedly."
Mr. Trumbull: "I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens. "
Mr. Cowan: "The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument."
Mr. Trumbull: "If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European. " Retrieved October 31, 2018.
- ↑ UNITED STATES v. WONG KIM ARK. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 182. Argued March 5, 8, 1897. - Decided March 28, 1898. In Library of Congress , US Reports Volume 169, page 699. Retrieved October 31, 2018.
- ^ "Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 498 onwards" Retrieved October 31, 2018.
- ^ NCC Staff: On this day in 1924: All Indians made United States citizens. In: National Constitution Center. June 2, 2015, accessed December 30, 2018 .