Info Brief: The Fourteenth Amendment—Framing, Ratification, and Principles

Review the history, significance, and timeline leading up to the ratification of the Fourteenth Amendment.

The Fourteenth Amendment is probably the most important revision to the Constitution following the Bill of Rights. The Fourteenth Amendment’s Framers were concerned with several issues:

Southern white abuses of African Americans and white Unionists.
The possible expansion of Southern white political power in Congress following the Thirteenth Amendment (assuming ongoing disenfranchisement of African Americans), as formerly enslaved people went from counting as 3/5 of a person for purposes of congressional representation under the antebellum Constitution to 5/5 of a person following the Thirteenth Amendment.
The validity of the national government’s debt and also with having to pay for debt incurred by the Confederacy.
The political status of the former Confederates themselves.

Given those concerns, the Amendment combines (at least) four big ideas:

First, birthright citizenship: Dred Scott is overturned, African Americans did have rights that the white man was bound to respect, and if you’re born on American soil, you’re an American citizen.
Second, equality: the original Constitution was silent on the issue of equality, and now that promise is written into the Constitution.
Third, freedom: the original Bill of Rights was limited to abuses by the national government, and now the Constitution protects those in the United States from abuses of fundamental rights by the states.
And, fourth, national power over civil rights: Congress is now given the power to enforce the protections enshrined in the Fourteenth Amendment.

Road to the Fourteenth Amendment: Debates, Timeline and Ratification

With Union victory in the Civil War secured, Reconstruction had begun. As Congressional Republicans attempted to pass legislation to address the continued violence and deprivation of rights of African Americans in the South, they dealt not with President Lincoln, but with President Andrew Johnson, who aimed for a Reconstruction policy lenient towards the white South. Johnson objected to many of the Reconstruction Congress’s plans, some of which Congress passed over Johnson’s vetoes.

Towards the end of 1865, Congress turned to new proposals to solidify the promise of Reconstruction. Among other bills, Congress began working on what would become the Civil Rights Act of 1866, the first piece of federal legislation that defined citizenship and guaranteed civil rights to all citizens, regardless of race.

After both houses passed the Act, President Johnson vetoed it. But Congress used its constitutional authority and a two-thirds majority to pass it anyway. The same thing happened with the Freedmen’s Bureau Bill—which provided additional rights to the formerly enslaved through access to land, schools, and other resources.

From Johnson’s vetoes and other examples of his resistance to Congress’s goals for Reconstruction, Republicans in the Reconstruction Congress became convinced that the protections of the Civil Rights Act would need to be enshrined not just in law, but in the Constitution itself.

The Fourteenth Amendment emerged from the Joint Committee on Reconstruction, which was tasked with proposing amendments to help set new constitutional baselines for post-Civil War America. During the debates over the Amendment, the Joint Committee and Congress considered several drafts (and proposed revisions).

For instance, the Joint Committee originally limited Section One of the Fourteenth Amendment to protecting only against racial discrimination rather than guaranteeing “all persons” equal protection of the laws as enshrined in the final Amendment.
In April 1866, the Joint Committee sent a version of Section One without a Citizenship Clause. That was added by Senator Jacob Howard during debates over the proposed amendment in the Senate.
And the Joint Committee approved of one draft of the Fourteenth Amendment that would have protected African-American voting rights. (Approved by the Committee on April 21, 1866, and removed on April 28, 1866.)

Throughout, Congressional Democrats (and President Johnson) defended traditional federalism against Republican attempts to expand the power of the national government. At the same time, many Republicans remained committed to federalism; they simply wanted to balance those traditional constitutional values with a national commitment to civil rights.

John Bingham (R-OH) was the main author of Section One of the Fourteenth Amendment. Bingham offered his first proposal in Congress on January 12, 1866. Congress would consider several other proposals concerning a range of topics between January and April.

To get to the Fourteenth Amendment, there were three major drafting phases:

Phase One ran from December 1865 (when Thaddeus Stevens presented his first proposals) to March 1866 (when the Senate rejected an amendment on congressional apportionment). During this phase, we see a series of separate proposals addressing specific issues. These efforts—which ran parallel to congressional debates over the Freedmen’s Bureau bill and the Civil Rights Act of 1866— failed.
Phase Two ran for one week—April 21, 1866, to April 28, 1866. This is the key drafting phase within the Joint Committee on Reconstruction, and it most resembles the sort of drafting that we saw as part of the original Constitutional Convention, with discrete edits to the draft voted on and approved/rejected by the Committee. The Committee proposal that emerged from this phase would eventually be sent to Congress, revised on the floor, approved by both Houses, and sent to the states for ratification. The key move during this phase was to bundle the various amendment proposals into a single amendment that addressed: (1) citizenship, freedom, and equality; (2) congressional representation (and African-American male disenfranchisement); (3) the political status of the former rebels; (4) government debt; and (5) congressional enforcement of civil rights.
Phase Three ran from April 29, 1866, to June 13, 1866. This phase comprises the debates in Congress over the Joint Committee’s final proposal, additional revisions (e.g., adding the Citizenship Clause and substantially revising the clause addressing the political rights of the ex-Confederates), and congressional approval.

Both houses approved the final version, and it was submitted to the states for ratification. Southern states at first refused to ratify it. But Congress soon passed the Reconstruction Acts, establishing military control over the South until certain conditions were met. One of those conditions was the ratification of the Fourteenth Amendment. Another was African American male voting throughout the former Confederacy. Congress’s strategy worked—and the Fourteenth Amendment was officially added to the Constitution.

So that’s the story of the road to the Fourteenth Amendment. To summarize, here’s a Fourteenth Amendment Timeline:

**Preceding Events**
Date	Significance
April 9, 1865	Battle of Appomattox Court House, and General Robert E. Lee surrenders.
April 14-15, 1865	President Lincoln assassinated, and Andrew Johnson becomes President.
April-December 1865	Congress in recess; President Johnson in control of Reconstruction (takes lenient approach); and Southern states reestablish governments and pass Black Codes. Southern states elect congressional delegations—some of which include high-ranking former Confederates (including former Vice President of the Confederacy, Alexander Stephens).

**Phase One of the Drafting Process (Joint Committee and Congress)**
Date	Significance
December 4, 1865	Congress convenes and refuses to seat the Southern delegations.
December 5, 1865	Thaddeus Stevens offers separate amendment proposals in the House, addressing Rebel Debt, Congressional Apportionment, and Equality.
December 6, 1865	John Bingham offers separate proposals in the House, addressing Rebel Debt and Equality (with the equality proposal empowering Congress).
December 13, 1865	Congress forms the Joint Committee on Reconstruction.
January 9-20, 1866	One phase of the drafting process within the Joint Committee.
January 31, 1866	House passes an apportionment amendment.
February 1866	Congress passes the Freedmen’s Bureau Act. President Johnson vetoes it.
February 2, 1866	The Senate passes the Civil Rights Act of 1866.
February 3, 1866	The Joint Committee debates Bingham’s proposal and revises the text. The Committee sends the proposal to Congress on February 10.
February 28, 1866	The House debates the Bingham proposal. It postpones consideration until April.
March 9, 1866	The Senate debates the apportionment amendment passed by the House in late January. The Senate rejects it. In addition, Charles Sumner offers a sweeping amendment (focused especially on the South and attacking “oligarchy” and “caste” and protecting political equality). Sumner’s proposal fails, too.
March 13, 1866	The House passes the Civil Rights Act of 1866.
March 27, 1866	President Johnson vetoes the Civil Rights Act of 1866.
April 6, 1866	The Senate overrides the Johnson veto.
April 9, 1866	The House overrides the Johnson veto, too, so the Civil Rights Act of 1866 passes over Johnson’s veto.

**Phase Two of the Drafting Process (Joint Committee)**
Date	Significance
April 21, 1866	Thaddeus Stevens suggests a five-part consolidated amendment to the Joint Committee. (This is a proposal offered by abolitionist Robert Dale Owen.) Section 1 focuses on discrimination (especially race)/civil rights and covers the states and the national government. Section 2 ends racial discrimination in voting, with a sunrise provision that begins these protections on July 4, 1876. Section 3 addresses congressional apportionment (similar to earlier drafts) and would last until July 4, 1876. (So, as designed, it would reduce congressional apportionment if African Americans are disenfranchised until the sunrise provision of Section 2 is triggered ending racial discrimination in voting.) Section 4 repudiates the Confederate debt. And Section 5 provides Congress with enforcement power (like our final Section 5). The proposal also provides for re-seating of the Southern congressional delegations if they ratify the Fourteenth Amendment and write the protections of Section 1 into their state constitutions and laws. It also excludes high-ranking Confederates who violated their constitutional oath as office-holders.
	Compared with the final amendment, this draft didn’t include a Privileges or Immunities Clause, Due Process Clause, Citizenship Clause, or protection for the U.S. debt. Bingham tries to add an Equal Protection Clause and other protections to Section 1. But his initial effort fails.
	The Joint Committee adopts Sections 1, 2, 4, and 5. It also approves a modified version of Section 3. Bingham adds a new Section that looks like our eventual Section 1 (without a Citizenship Clause). The Committee approves of Bingham’s proposal.
April 25, 1866	The Committee strikes out Bingham’s Section of the Amendment. With that, the proposal limits its substantive protections to racial discrimination. However, the proposal still includes the provision ending racial discrimination in voting.
April 28, 1866	Thaddeus Stevens strikes out the provision ending racial discrimination in voting and eliminates the sunset provision of Section 3 on congressional apportionment. The Committee adopts these changes. So, at this point, the proposal aims squarely at civil rights and racial discrimination.
	The Committee revises the congressional apportionment provision to reach something like the final text, inserting “male” and explicitly mentioning 21-year-olds. This insertion of gender in the Amendment drew a backlash from many women’s rights activists, including Elizabeth Cady Stanton and Susan B. Anthony.
	Bingham moves to replace Section 1 (focused on racial discrimination) to his proposed Section 1 (which is the same as his previous proposal and like our final version, except without the Citizenship Clause). The Joint Committee adopts Bingham’s proposal.
	The Joint Committee sends the proposal to Congress.

**Phase Three of the Drafting Process (Congress)**
Date	Significance
April 30, 1866	Thaddeus Stevens introduces the proposed Amendment in the House. There were three key differences between this draft and the final one. First, there’s no Citizenship Clause. Second, Section 3 is much broader, excluding ex-Confederates from voting in Congress and for electors for President and Vice President. Third, Section 4 only covers the repudiation of the Confederate debt; it doesn’t protect the debt of the national government.
May 10, 1866	The House debates Stevens’s proposal. The House passes it.
May 23, 1866	Jacob Howard introduces the proposed Amendment to the Senate.
May 29-31 and June 4, 1866	The Senate debates and amends the proposed Amendment. The Senate (through Howard) adds the Citizenship Clause.
	The Senate also strikes out Section 3 (addressing the ex-Confederates) and inserts a new version like our final version (which ends office-holding for high-ranking ex-Confederates, so it’s narrower than the House version).
	It also tweaks Section 2 (on congressional apportionment).
	Finally, it also revises Section 4 (on debt), adding language protecting the debt of the national government.
June 8, 1866	The Joint Committee on Reconstruction submits its report (with a majority statement and a minority statement) to Congress. Senator Doolittle tries to unbundle the Sections of the Amendment and vote on them separately. The Senate rejects this effort. The Senate passes the proposed Amendment, as revised by the Senate.
June 13, 1866	The House passes the Senate’s version of the proposed Amendment. The proposal is sent to the states for ratification.
July 1866	Congress passes the Freedmen’s Bureau Act again, Johnson vetoes it again, and Congress overrides Johnson’s veto.
March 13, 1866	The House passes the Civil Rights Act of 1866.
March 27, 1866	President Johnson vetoes the Civil Rights Act of 1866.
July 9, 1868	The Fourteenth Amendment is ratified.

Want to join the conversation?

Sort by:

No posts yet.