Today in 1868: The Fourteenth Amendment is ratified

July 28, 2016

Today in Legal HistoryThe “Reconstruction Amendments” – that is, the Thirteenth, Fourteenth, and Fifteenth Amendments – are referred to as such because they were passed during the “Reconstruction” era of U.S. history (the period of time immediately following the Civil War).

These amendments were adopted to guarantee the rights of the newly freed former slaves.  Specifically, the Thirteenth Amendment abolished slavery, the Fourteenth Amendment extended citizenship to “all persons born or naturalized in the United States,” and the Fifteenth Amendment guaranteed the right to vote to all males, regardless of their “race, color, or previous condition of servitude.”

Of these, the only one that still maintains any ongoing relevance in the legal arena is, of course, the Fourteenth Amendment; not because of its citizenship clause, but rather because of the clauses that immediately follow it relating to “privileges or immunities,” “due process,” and “equal protection.”

Those clauses you may recognize from such blockbuster Supreme Court decisions as 1954’s Brown v. Board of Education, 1973’s Roe v. Wade, 2015’s Obergefell v. Hodges, and many, many more.

And this illustrious amendment was ratified 148 years ago today, on July 28, 1868.

If its heavy association with the above SCOTUS rulings doesn’t emphasize the Fourteenth Amendment’s importance enough, let’s look a bit more at why this amendment is widely regarded as the most significant (besides the Bill of Rights) among constitutional scholars.

Perhaps the most critical component of the Fourteenth Amendment’s considerable influence is the principle of “incorporation” – that is, the application of the Bill of Rights against the individual states and local governments.  Although the Supreme Court has not yet incorporated every single right enshrined in the first ten amendments, it has incorporated most.  This means that, if not for the Fourteenth Amendment, the protections of the First Amendment wouldn’t be enforceable against a state government; nor any of the criminal protections found in the Fourth, Fifth, and Eighth Amendments.

True, many state constitutions have emulated the federal Bill of Rights, they do not necessarily enshrine the same rights; nor would there be any guarantee that state courts would interpret the state laws to provide as expansive of protections as are guaranteed by federal law.

Another noteworthy part of the amendment’s influence is the Equal Protection Clause, which prohibits “any State” from denying “to any person within its jurisdiction the equal protection of the laws.”  Although the amendment as written seems to apply only to individual states, the Supreme Court ruled in 1954’s Bolling v. Sharpe that those same restrictions are applicable against the federal government (a doctrine referred to as “reverse incorporation”).

Today, the Fourteenth Amendment continues to find a central place in a number of critical legal battles, including those before the Supreme Court.  Indeed, hardly a term goes by that doesn’t see a major SCOTUS ruling in which the Fourteenth Amendment played a crucial role.

Thus, for the foreseeable future, the Fourteenth Amendment will continue to be one of the most significant constitutional amendments ever ratified.