A Post-Civil War Remedy

The 14th Amendment was one of the Reconstruction Amendments proposed by Congress in 1868 after the Civil War. It attempted to ameliorate many issues of our Post-Civil War United States as it tried to address everything from Citizenship to Civil Rights, Political Rights, Privileges, Immunities, Equal Protection, Due Process, Apportionment and Public Debt in four rambling one-paragraph sections and one, final, ubiquitous one-sentence section about congressional enforcement.

The push for a legislative solution started with the Radical Republicans, as they called themselves. The Radical Republicans were a faction within the Republican Party of the United States from around 1854 (before the start of our Civil War in 1861) until the end of Reconstruction in 1877. They called themselves "Radical" because they espoused the radical goal of immediate, complete and permanent eradication of slavery without compromise. They held a more radical view than other more moderate Republicans during the war and Reconstruction. Their radical views and the more moderate views of the other Republicans were opposed by the pro-slavery and anti-Reconstruction Democratic Party as well as liberals in the North during Reconstruction.

Radical Republicans led the efforts after the Civil War to establish civil rights for former slaves and fully implement emancipation. Radical Republicans also opposed allowing ex-Confederate officers to retake political power in the South, and emphasized equality, civil rights and voting rights for "freedmen," the people who had been enslaved by state slavery laws within the United States and freed by the 13th Amendment.

After weaker legislative measures, most notably the Civil Rights Act of 1866, resulted in violence against former slaves in the rebellious States, Radicals pushed for other statutory protections through Congress resulting in the adoption of the 14th Amendment in 1868.

The 14th Amendment is arguably one of the most consequential amendments to our Constitution. The Amendment addresses citizenship, civil rights and equal protection under the law which were not automatically afforded to former slaves following the US Civil War. The Amendment was bitterly contested by the States of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress.

The Amendment, particularly its first section with its hodge-podge of five issues crammed into one paragraph seemingly separated only by commas, is one of the most litigated parts of our Constitution, forming the basis for landmark decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, McDonald v. Chicago (2010) regarding handgun ban, and Obergefell v. Hodges (2015) regarding same-sex marriage; among others. The Amendment limits the actions of all State and local officials, and also those acting on behalf of such officials.

Over 70 proposals for an amendment were drafted for consideration.[13] In late 1865, the Joint Committee on Reconstruction proposed an amendment stating that any citizens barred from voting on the basis of race by a State would not be counted for purposes of representation of that State.[14] This proposal passed the House, but was blocked in the Senate by an unlikely coalition of Radical Republicans, led by Charles Sumner, who wanted guaranteed rights for freedmen and who believed this proposal was a "compromise with wrong;" and the Democrats who were opposed to black rights altogether.[15]

Consideration next turned to a proposed amendment by Representative John A. Bingham of Ohio, which would enable Congress to safeguard "equal protection of life, liberty, and property" of all citizens. This proposal failed to pass the House.[15]

Then, in April 1866, the Joint Committee forwarded another proposal to Congress, a highly negotiated compromise that combined elements of the last two proposals as well as adding the issues of Confederate debt and voting by ex-Confederates.[15] The House of Representatives passed House Resolution 127, 39th Congress, several weeks later and sent it to the Senate for action. The resolution was debated and several amendments to it were proposed. Amendments to Sections 2, 3, and 4 were adopted on June 8, 1866, and the modified resolution passed by a 33 to 11 vote (5 not voting). The House agreed to the Senate amendments on June 13 by a 138 to 36 vote (10 not voting). Subsequently, on June 18th, a concurrent resolution was passed by both houses of Congress requesting the President transmit the proposed Amendment to the executives of the several States.[16][17]

The Radical Republicans were satisfied that they had secured civil rights for all citizens, specifically freedmen, but were disappointed that the Amendment would not also secure political rights for all; in particular the right to vote.[18] Thaddeus Stevens, who was a prominent disappointed leader of the Radical Republicans, and abolitionist Wendell Phillips called the proposed Amendment a "fatal and total surrender."[19]

The right to vote would be addressed by the Fifteenth Amendment, the third and last Reconstruction Amendment which was ratified in 1870.