Who is included in “We the People”? Whose rights does the law protect?
The 14th Amendment to the Constitution is one of the nation’s most important laws relating to citizenship and civil rights. Ratified in 1868, three years after the abolishment of slavery, the 14th Amendment served a revolutionary purpose — to define African Americans as equal citizens under the law. Although its promises have not always been upheld, the 14th Amendment has provided African Americans and other groups in society with a legal basis to challenge discrimination, demand equal rights and protections, and effect change.
Black people have been fighting for basic citizenship rights since the inception of the country.
Ta-Nehisi Coates "The First White President," The Atlantic, 2017
Deconstructing the 14th Amendment
The 13th Amendment, ratified in December 1865, made slavery illegal throughout the United States. But it did not address other fundamental questions about the status of newly freed African Americans. Were they citizens? Did they have the same rights as other Americans? To resolve these issues, Congress passed the 14th Amendment, which contained key provisions on the definition of citizenship, the protection of civil rights, and the power of the federal government.
From the nation’s founding, African Americans regarded themselves as citizens. When the U.S. Constitution was ratified in 1788, it did not restrict citizenship based on race. However, it only counted enslaved people as 3/5ths of a person, rather than as full citizens, in state populations.
Dred Scott and Harriet Robinson Scott
Dred Scott and his wife, Harriet Robinson Scott, filed suits to claim their freedom while still enslaved, based on having lived in free territory. Dred Scott appealed his case to the United States Supreme Court, which denied his claim on the basis that he was not a citizen and had no right to sue in federal court. Delivering the opinion of the Supreme Court in the case of Dred Scott v. Sanford, 1857, Chief Justice Roger B. Taney wrote: "[slaves and their descendants] had for more than a century been regarded as beings of an inferior order … they had no rights which the white man was bound to respect."
The Case of Dred Scott in the United States Supreme Court, 1857.
Collection of the Smithsonian National Museum of African American History and Culture, CC0
Illustrated portraits of Dred Scott, his wife, Harriet, and their children, Eliza and Lizzie.
Library of Congress
The U.S. Supreme Court declared in the case of Dred Scott v. Sanford that Black people, whether free or enslaved, were not citizens, but “a separate class of persons.” This decision protected the institution of slavery, which defined enslaved people as property, and supported discriminatory laws that denied equal citizenship status to free Black people.
The citizenship clause of the 14th Amendment was specifically intended to repeal the Dred Scott decision. It established the principle of birthright citizenship, meaning a person born in the U.S. is automatically a citizen. This clause did not apply to Native Americans, however, who were not legally declared U.S. citizens until the Indian Citizenship Act of 1924 (pdf). Under the 14th Amendment, African Americans could now legally claim the same constitutional rights afforded to all American citizens.
Civil Rights, Due Process, and Equal Protection
Protesting Black Codes
After the abolishment of slavery in 1865, southern states passed laws known as Black Codes, which restricted the civil rights of newly freed African Americans and forced them to work for their former enslavers. African Americans organized conventions across the South to protest the Black Codes and petition Congress for equal rights.
Proceedings of the Colored People’s Convention of the State of South Carolina,1865.
Colored Conventions Project
We simply desire that we shall be recognized as men; that we have no obstructions placed in our way; that the same laws which govern white men shall direct colored men; that we have the right of trial by a jury of our peers; that schools be opened or established for our children; that we be permitted to acquire homesteads for ourselves and children; that we be dealt with as others, in equity and justice.
Address of the Colored State Convention to the People of the State of South Carolina, 1865
The State Convention of Colored People of South Carolina, held in Charleston in November 1865, issued a 54-foot-long petition signed by hundreds of men. The petitioners asked Congress to help them secure “our equal rights before the law” and “an equal voice with all loyal citizens.”
Petition of Colored Citizens of South Carolina for Equal Rights Before the Law, and the Elective Franchise,1865.
Justin S. Morrill Papers, Manuscript Division, Library of Congress, Washington, D.C.
Read the transcript of the Petition of Colored Citizens of South Carolina for Equal Rights Before the Law, and the Elective Franchise, 1865:
To the Honorable Senate and House of Representatives in Congress assembled. We the undersigned colored citizens of South Carolina, do respectfully ask your Honorable Body, in consideration of our unquestioned loyalty, exhibited by us alike as bond or free;—as soldier or laborer;—in the Union lines under the protection of the government; or within the rebel lines under the domination of the rebellion; that in the exercise of your high authority, over the re-establishment of civil government in South Carolina, our equal rights before the law may be respected; — that in the formation and adoption of the fundamental law of the state, we may have an equal voice with all loyal citizens; and that your Honorable Body will not sanction any state Constitution, which does not secure the exercise of the right of the elective franchise to all loyal citizens, otherwise qualified in common course of American law, without distinction of Color — Without this political privilege we will have no security for our personal rights and no means to secure the blessings of education to our children.
The state needs our vote, to make the state loyal to the Union, and to bring its laws and administration into harmony with the present dearly bought policy of the country, and we respectfully suggest that had the constitution of South Carolina been heretofore, as we now ask that it shall be hereafter, this state would never have led one third of the United States into treason against the nation.
For this object, your petitioners will as in duty bound, ever pray &c.
The 14th Amendment revoked the Black Codes by declaring that states could not pass laws that denied citizens their constitutional rights and freedoms. No person could be deprived of life, liberty, or property without due process (fair treatment by the judicial system), and the law was to be equally applied to everyone. This represented a major shift in power between the states and the federal government. For the first time, civil rights were to be protected at the federal level, not left to the states.
Representation and Voting Rights
The 14th Amendment also included provisions relating to voting and representation in Congress. It amended the 3/5ths clause in the Constitution, stating that population counts would be based on the “whole number of persons” in a state—all people would be counted equally. It also protected the right to vote “for all male citizens age 21 or older,” though it would take another amendment to the Constitution (the 15th Amendment, ratified in 1870) to ban voting restrictions based on race. Women would not secure the right to vote until the ratification of the 19th Amendment in 1920.
Reconstruction and the 14th Amendment
Congress passed the 14th Amendment on June 13, 1866, and sent it to the states to be ratified. But changing the Constitution to fulfill the promise of equality for African Americans would not be an easy process. Slavery, which defined Black people as property, not as citizens, had shaped the United States since its founding. In order for the 14th Amendment to become the new law of the land, it would need more than a ratification—it would need Reconstruction.
Twenty-two states ratified the 14th Amendment within a year after it was passed, out of a total of 28 needed to make the amendment part of the U.S. Constitution. But most southern states, led by the same white men who had passed the Black Codes, refused to ratify an amendment that defined African Americans as equal citizens. Black men and women who attempted to exercise their rights and freedoms faced resistance, violence, and retaliation from their fellow white citizens.
On May 1, 1866, mobs of white civilians and police attacked the Black community in Memphis, Tennessee. The first major outbreak of racial violence after the Civil War, the Memphis Massacre lasted three days and resulted in the deaths of 46 African Americans. National outrage over the incident helped fuel support for passage of the 14th Amendment.
I was going home to my mother’s, and when I had got to Brown avenue and De Soto streets, I met two men, one was a policeman, I do not know who the other was; the policeman shot me in the head … After he shot me, he asked me if I was a soldier. I said no. He said it was a good thing I was not, and he then went along.
Taylor Hunt, age 16 Testimony from Memphis Riots and Massacres,” House of Representatives Report No. 101, 39th Cong., 1st Sess., 1866
Scenes in Memphis, Tennessee, During the Riot—Shooting Down Negroes on the Morning of May 2, 1866.
Tennessee Virtual Archive
Opposition to the 14th Amendment was not limited to the South. In northern and western states, the Democratic Party appealed to white voters who opposed the idea of equal rights for African Americans. Three states—Ohio, Oregon, and New Jersey—that initially ratified the 14th Amendment rescinded their ratifications in 1868 after Democrats gained control of those state legislatures.
In 1867, Congress passed the Reconstruction Acts, which placed former Confederate states under military rule until they ratified the 14th Amendment and established new constitutions guaranteeing equal rights and protections to African Americans. The Reconstruction Acts also granted Black men in southern states the right to vote and hold elected office. Once African Americans were able to participate in the political process, the 14th Amendment gained the final votes it needed in the South. On July 9, 1868, Louisiana and South Carolina voted to ratify the amendment, making it officially part of the U.S. Constitution.
After the 14th Amendment was ratified in 1868, white southerners continued to violently oppose Black civil rights. In 1870 and 1871, Congress passed three laws known as the Enforcement Acts, which invoked the power of the federal government under the 14th Amendment to intervene when states failed to protect the rights of citizens.
The Enforcement Acts specifically targeted the Ku Klux Klan for conspiring to prevent Black men from voting. During federal grand jury investigations, hundreds of African Americans came forward to testify about being terrorized by the Klan. In South Carolina, this testimony led to the indictment of 220 Klansmen for civil rights violations, but only five were ultimately tried and convicted.
Civil Rights Act of 1875
To expand on the 14th Amendment’s promises of equal rights and protection under the law, civil rights advocates called for new federal legislation to outlaw racial discrimination in public places. In 1875, Congress passed the Civil Rights Act, which guaranteed all persons equal access to public accommodations, including theaters, hotels, and transportation, and allowed anyone denied services on account of race to seek restitution in federal court. Among those who helped secure the bill’s passage were Black members of Congress elected during Reconstruction, including Robert B. Elliott of South Carolina, who gave a famous speech in favor of the legislation.
Rep. Robert Brown Elliott.
Collection of the Smithsonian National Museum of African American History and Culture, Stanley Turkel's Collection of Reconstruction Era Materials
[This bill] does not seek to confer new rights … but simply to prevent and forbid inequality and discrimination on account of race, color, or previous condition of servitude. … [It] will determine the civil status, not only of the Negro, but of any other class of citizens who may feel themselves discriminated against.
Rep. Robert B. Elliott Speech in favor of the Civil Rights Act, 1874
By 1875, when the Civil Rights Act was passed, the 14th Amendment was already under attack. Over the next two decades, the 14th Amendment’s power to protect the constitutional rights of African Americans would be undermined by legal challenges that reestablished the primacy of states’ rights, allowed racial segregation, and relegated Black people to second-class citizenship.
Limiting the 14th Amendment: Segregation and Unequal Protection
White supremacists opposed to Black equality and citizenship used violence, terror, and voter suppression to retake control of southern state governments. Efforts to combat southern racial violence lost momentum within the federal government and finally resulted in the withdrawal of federal troop protection of African Americans living in the South. Supreme Court rulings restricting and overturning 14th Amendment civil rights protections reinforced Southern efforts to restrict the rights of African Americans. Racial discrimination and segregation consequently characterized the day-to-day lives of African Americans.
Colfax Massacre and Cruikshank Decision
On April 13, 1873, white Democrats in Louisiana angry about their defeat in the election attacked Black Republicans gathered for a meeting at the Colfax Parish Courthouse in Louisiana. Approximately 150 African Americans were killed, forty of whom were executed after they surrendered.
In March 1876, the U.S. Supreme Court decision in United States v. Cruikshank overturned the convictions of the white men who attacked Black citizens in Colfax, Louisiana. The Court ruled that the 14th Amendment only applied to actions taken by the state, not to actions taken by individuals. As a consequence, none of the white attackers were punished for their role in the Colfax Massacre.
The 1876 Cruikshank ruling followed an earlier Supreme Court decision in the 1873 Slaughterhouse Cases, which allowed state legislatures to pass laws restricting citizenship rights, and further highlighted the decision by the Court not to protect the civil rights of African Americans. Southern legislatures soon passed discriminatory laws restricting access to voting and other rights of African Americans.
The Rise of Jim Crow
After the withdrawal of federal troops and the systematic removal of African Americans from political offices, southern legislatures wrote new state constitutions. The new constitutions made segregation and racial discrimination legal. These “Jim Crow” laws made African Americans second-class citizens no longer protected by the 14th Amendment. Consequently, lynching and other acts of intimidation increased in frequency while African Americans had no legal means of protecting themselves.
African Americans repeatedly challenged the emergence of segregation. They staged protests, brought claims to the courts, and produced publications highlighting and opposing the discrimination and violence they faced. They argued the passage of the 14th Amendment gave them the same civil rights and equal protection as any other citizens.
Ida B. Wells
In 1883, Ida B. Wells was working as a schoolteacher in Memphis, Tennessee, when a white conductor forced her off a train for refusing to move out of the first-class car. Citing her rights under the Civil Rights Act of 1875, Wells sued the railroad company for damages. The Circuit Court of Shelby County ruled in Wells’s favor, stating that she was “refused the first-class accommodations to which she was entitled under the law”; however, the Supreme Court of Tennessee later reversed the decision on appeal. Wells went on to become a prominent journalist and civil rights activist whose campaign against lynching brought worldwide attention to racial violence and injustice in the Jim Crow South.
In 1892 Homer Plessy of New Orleans, Louisiana, volunteered to test the legality of railroad car segregation in that state. He sat in a “whites only” car, refused to move to a segregated car, was arrested, and sued in court. The case eventually reached the U.S. Supreme Court, which ruled in 1896 that segregation was legal as long as the accommodations were “separate but equal.”
The 1896 Plessy v. Ferguson Supreme Court decision further reinforced the rise of segregation. The Court rendered this decision despite the reality that separate areas provided for African Americans rarely were equal. John Marshall Harlan, the only dissenting justice, argued against the decision: “The arbitrary separation of citizens, on the basis of race … is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.”
Despite the refusal of the courts or politicians to support them, African Americans continued to challenge segregation and demand their equal rights under the Constitution. They pressed forward their fight in the belief that their efforts might eventually result in change.
Reviving the 14th Amendment: Modern Civil Rights Movement
In the 20th century, the NAACP and its Legal Defense arm emerged as a key organization which used the 14th Amendment to litigate changes in the laws of the country. In a series of cases, it was able to persuade the Supreme Court to interpret the 14th Amendment in a manner which increased the legal rights of African Americans and others.
Landmark Court Cases
White Backlash and Resistance
Southerners in particular resisted changes in racial mores, using violence and other tactics to demonstrate their objections and anger. Between 1955 and 1969, more than 40 civil rights activists and other individuals were killed as the result of violent actions taken by whites opposed to ending segregation.
Emmett Till (1955)
Emmett Till, a 14-year-old from Chicago, was kidnapped while visiting relatives in Mississippi and murdered for allegedly insulting a white woman. The decision by his mother, Mamie Till-Mobley, to have a public funeral in Chicago brought national and international attention to southern atrocities inflicted on African Americans. .
Photograph of Emmett Till with his mother, Mamie Till Mobley.
Collection of the Smithsonian National Museum of African American History and Culture, Gift of the Mamie Till Mobley family
“Segregation Forever,” Fort Lauderdale, Florida, 1964.
High Museum of Art, © Steve Schapiro
Southern Manifesto (1956)
A concept initiated by Senator Harry Byrd of Virginia, which called for massive resistance to the desegregation of schools. More than 100 members of Congress endorsed the idea. A number of states, led by Virginia, passed laws which cut off state funds and closed any public school that attempted to integrate. Eventually the Supreme Court overturned these laws based upon the “equal protection” portion of the 14th Amendment.
Civil Disobedience and Nonviolent Action
Civil rights activists, often led by Dr. Martin Luther King Jr., used nonviolent protests and civil disobedience to pressure for the passage of legislation which would embody the original intention of the 14th Amendment and protect their rights as citizens.
Montgomery Bus Boycott, 1955–1956
The arrest of Rosa Parks on December 1, 1955, for refusing to surrender her bus seat to a white passenger served as the catalyst for a boycott of the segregated buses in Montgomery, Alabama. With the Reverend Martin Luther King Jr. as their spokesperson, African American residents refused to use public buses for 13 months. The protest ended after the U.S. Supreme Court ruled that segregation on public buses was unconstitutional.
Rosa Parks is fingerprinted after she was arrested along with other civil rights activists during the bus boycott, Montgomery, Alabama, 1956.
Photo by Underwood Archives/Getty Images
Marchers gathering at the Lincoln Memorial after walking from Washington Monument grounds, August 28, 1963.
Collection of the Smithsonian National Museum of African American History and Culture, Gift of James H. Wallace Jr. © Jim Wallace
March on Washington for Jobs and Freedom, 1963
In an effort to pressure President John F. Kennedy and Congress to pass a strong civil rights bill, A. Phillip Randolph and Bayard Rustin organized a peaceful march in Washington, D.C., attended by more than 200,000 people. There, Dr. Martin Luther King Jr. delivered his famous “I Have A Dream” speech. The following year the 1964 Civil Rights Act was passed.
Civil Rights Act of 1964
President Lyndon B. Johnson signed the Civil Rights Act into law on July 2, 1964, in the presence of Martin Luther King Jr. and other civil rights activists. The law gave the federal government the power to ensure the desegregation of schools, parks, swimming pools, and other public facilities. It also restricted the use of literacy tests as a requirement for voter registration and established the Equal Employment Opportunity Commission to address issues of race and sex discrimination in employment.
Pen used by Presdient Lyndon B. Johnson to sign the 1964 Civil Rights Act.
Collection of the Smithsonian National Museum of African American History and Culture, Gift of James F. Dicke, II
NAACP demonstration for equal housing, 1968.
Harvard Civil Rights, Civil Law Review
Fair Housing Act of 1968
Building on earlier housing discrimination legislation, the 1968 Fair Housing Act provided protection from discrimination based on race, religion, national origin, or sex for individuals renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housing-related activities. The federal law was enacted on April 11, 1968, seven days after the assassination of Martin Luther King Jr. in Memphis, Tennessee.
14th Amendment Issues Today: Whose Rights? What Rights?
The 14th Amendment defines all persons born in the United States as citizens. It also extends the rights of due process and equal protection of the laws to any person, regardless of citizenship status. But from Reconstruction to today, various groups in society have had their citizenship status and civil rights ignored or redefined through executive order or legislation. In demanding to be included and recognized as “We the People” whose rights the Constitution protects, these Americans have challenged the nation to fulfill its founding promises of liberty, equality, and justice for all.
Who is a citizen, and what rights are granted to non-citizens, are questions that continue to spark debate. The birthright citizenship principle of the 14th Amendment was upheld by the U.S. Supreme Court in 1898 when they ruled that Wong Kim Ark, born in the United States to Chinese parents, was a citizen despite his parents’ status as non-citizens. Immigrants have also looked to the 14th Amendment to claim rights to due process and protection from discrimination, while also seeking more equal pathways to citizenship.
Youth immigrants known as Dreamers, who grew up in the United States after arriving with their undocumented parents, protest outside a federal detention center where undocumented immigrants are held, Los Angeles, California, 2018.
David McNew/Getty Images
ERA supporters rally at the State Capitol in Richmond, Virginia, 2019.
Patricia Sullivan/The Washington Post via Getty Images
After the 14th Amendment was ratified in 1868, women sought to claim their full rights of citizenship under the law, including the right to vote. But the courts did not support these claims, and so women’s rights activists worked for other laws that would guarantee equal rights regardless of sex. The 19th Amendment, ratified in 1920, granted women the right to vote. The Equal Rights Amendment (ERA), first proposed in 1923, passed Congress in 1972 but failed to secure the state votes needed for ratification. Since then, activists have continued to fight against gender-based discrimination through legal, political, and social means.
The right of individuals to marry the person of their choice, regardless of their race or gender, gained protection under the 14th Amendment through two landmark legal cases. In Loving v. Virginia (1967), the U.S. Supreme Court struck down state laws banning interracial marriage. Nearly 50 years later, in Obergefell v. Hodges (2015), the Court ruled that state laws against same-sex marriage were unconstitutional.
Ikea Catu and her partner Carmen Guzman celebrate the Supreme Court’s decision in favor of same-sex marriage, Washington, D.C., 2015. The couple married in Canada in 2009 as their marriage wasn’t legalized in their home state of Virginia.
Brittany Greeson/The Washington Post via Getty Images
Black Lives Matter
One hundred and fifty years after the 14th Amendment defined African Americans as equal citizens under the law, the promises of full racial equality remain unfulfilled. Protests over the violent and discriminatory treatment of Black people by the justice system, sparked by the killings of Trayvon Martin, Michael Brown, and too many others, gave rise to the nation’s largest civil rights movement. In taking on issues of racial profiling and police brutality, Black Lives Matter activists have compelled Americans to reckon with legacies of white supremacy, violence, and social injustice that have persisted for generations. They have demanded answers to questions that are at the heart of the 14th Amendment: Who is included in “We the People”? Whose rights does the law protect? Whose lives matter?
Reconstruction changed the nation in fundamental ways. Three new amendments to the U.S. Constitution abolished slavery, provided equal protection of the law for all citizens, and banned racial discrimination in voting. But the promise of these laws alone would not secure the visions of freedom that African Americans pursued, if the nation was not willing to uphold and enforce them.
In a composite Nation like ours, made up of almost every variety of the human family, there should be, as before the Law, no rich, no poor, no high, no low, no black, no white, but one country, one citizenship, equal rights, and a common destiny for all.
Frederick Douglass 1882
(Image Top) Collection of the Smithsonian National Museum of African American History and Culture, Gift of Monica Karales and the Estate of James Karales