In the chapters that follow, we will examine the substantive and procedural reach of a number of the more important and frequently litigated individual rights limitations on governmental authority. This chapter, however, addresses several preliminary matters. It begins with a brief historical and descriptive perspective on the Fourteenth Amendment. This is designed to provide a foundation for the multitude of doctrines that are built on and around that amendment. Although the provisions of the Bill of Rights merit their own individual consideration, the Fourteenth Amendment stands alone in its radical transformation of our system of government. Next, the chapter examines three preliminary doctrinal matters directly related to the protection of individual rights—namely, the incorporation doctrine, the state action doctrine, and the scope of congressional enforcement powers under the Thirteenth, Fourteenth, and Fifteenth Amendments, otherwise known as the Civil War Amendments.
The Text of §1 of the Fourteenth Amendment
Section 1 of the Fourteenth Amendment consists of two sentences. The first sentence provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This sentence accomplishes two things: First, it creates a definition of U.S. citizenship (“All persons born or naturalized”); second, it provides a definition of state citizenship (“reside”). Neither point is controversial today, and there is general agreement that the language of this sentence means exactly what it appears to say. The phrase “subject to the jurisdiction thereof ” requires further investigation. That investigation would reveal that the phrase was designed to exclude two classes of persons—children of alien enemies in hostile occupation and children of diplomatic representatives of foreign states. We could also quibble about the word “reside,” but without too great an effort, a workable and relatively noncontroversial meaning would be discovered, namely, domicile or place of permanent residence. In short, the first sentence defines citizenship at both the federal and the state levels in relatively clear terms and with only a minimal need to look beyond the specific language used.
Despite the relative clarity of the first sentence, some reference to history is beneficial. Prior to the Civil War, the U.S. Supreme Court had held that an African American sold as a slave is not a citizen of the United States. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The Dred Scott decision, which denied the status of citizenship to slaves, former slaves, and their descendents, was viewed by Republicans as a precipitating and an infamous cause of the Civil War, and the first sentence of §1 was designed to repeal that decision. This specific purpose would have been clear to contemporary observers, though it is a bit obscure to the modern reader. Even given that underlying purpose, however, the language of the Amendment is much broader than would have been necessary to simply overrule Dred Scott. It covers all persons born or naturalized in the United States, not just former slaves. In other words, it creates a general definition of citizenship, and we need not look beyond the actual words to discover that definition.