How Reconstruction Built Birthright Citizenship And Equal Protection

The Fourteenth Amendment is often treated like a simple shortcut for “civil rights,” but its real story is messier, more political, and far more useful for understanding today’s constitutional fights. We pick up in Reconstruction, right after slavery ends on paper, when Southern states rush to impose Black Codes that restrict contracts, court access, and basic freedom of movement. That backlash pushes Congress toward the Civil Rights Act of 1866, and then straight into the hard question: what gives Congress the constitutional authority to do any of this?

From there, we walk clause by clause through what the Fourteenth Amendment is trying to lock in. We explain how the Citizenship Clause is built to overturn Dred Scott and why its spare wording fuels modern disputes over birthright citizenship and the meaning of “subject to the jurisdiction.” We also connect the big three protections in Section One privileges or immunities, due process, and equal protection to the practical problem they’re trying to solve: stopping states from creating one set of rights on paper and another in real life.

We also spend time on the sections people forget. Section Two’s representation penalty reveals how lawmakers tried (and failed) to deter disenfranchisement. Section Three’s ban on officeholding for former Confederates shows how Reconstruction uses constitutional design to shape political power. Finally, we trace how “no state shall” complicates federal civil rights law, from the Civil Rights Act of 1875 and the meaning of “public accommodations” to the Supreme Court’s 1883 decision and the long road to the Civil Rights Act of 1964.

If you want a clearer handle on Reconstruction Amendments, constitutional law, equal protection, due process, and the roots of modern civil rights debates, hit subscribe, share the episode with a friend, and leave us a review. What part of the Fourteenth Amendment do you most want us to unpack in part two?

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Transcript

SPEAKER_00 0:46

Welcome back to Civics in Year. If you have not listened to the previous two episodes on reconstruction of the Constitution and the 13th and 15th Amendments, I highly suggest it. But today we're talking about the 14th Amendment and kind of looking at the, you know, what was happening at the time and what it changed. So, Dr. Weinberg, you're back with us. We're looking at the 14th Amendment within the Reconstruction Amendments. What is going on and what is the 14th Amendment changing in the time that it's passed?

Black Codes And The 1866 Act

Citizenship Clause And Dred Scott Reversal

Section Two And Section Three

SPEAKER_01 1:17

Yeah. So the 14th Amendment is happening basically during Reconstruction, right? So it is basically a response to things that have been happening in Reconstruction, where they think they need to shore it up, andor what do they think needed to be supplemented to. So the 13th Amendment obviously terminates slavery, but very quickly, states start rolling out what are called black codes that effectively say, okay, you're not a slave, but you can't have a contract, or you're not a slave, but you can't come to court. You can't you're not a slave, but and so the first major, so in 1866, Congress passes the Civil Rights Act of 1866. And it makes basic contractual and government access rules sort of race neutral. And so it's worded in a very interesting way where I think some folks, the Civil Rights Act of 1866, on my read, does not extend sort of substantive rights. But it basically says any rights that whites get, quote, citizens of every race and color get. So it's just basically a sort of like parody or con, you know, it's more of a parody, parody thing. So again, particularly with things that are about contracts and like access to the court system. So like rights that, you know, Republicans have been very invested in this idea of like free labor, right? What is basically stopping a you know a black man in the South from going, earning a living, being left alone, being paid well, being able to make sure he's actually paid in a contract, being able to sue his neighbor, and so on and so forth. So the Civil Rights Act is basically an effort to crack down on those sort of nascent black codes. But this causes a question. What authorizes Congress to pass this? Right? Some say the 13th Amendment does, but it either very much is or arguably is a stretch to say terminating slavery now sets a rule about like court access, right? And so they want to do another amendment that will clearly constitutionalize the Civil Rights Act. So that is the what the 14th Amendment. I mean, the 14th Amendment, there's a reason we're doing two podcasts on it. We could do two class, two entire semesters on it. So the 14th Amendment is gets complicated very fast, but the part that everybody will agree with, everybody, everybody, is one, it is supposed to eliminate, they're supposed to, excuse me, guarantee and protect this constitutionality of the Civil Rights Act. The other piece that everybody clearly agrees it's supposed to do is overturn Dred Scott's rule on racial, basically racial citizenship. And so its first section says, you know, 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. And so that is clearly saying, you know, you can't have this like, well, there's these whole categories of racial groups that are basically banned. The language is very sparse in one place that obviously causes controversial debates today, like the ideas of sort of birthright citizenship, because obviously, by its own text, there are exceptions to those who have birthright citizenships, those who are not, quote, subject to the jurisdiction thereof. And that gets very complicated very fast. How that relates to the phrase not subject to any foreign power, which is the language that's used in the Civil Rights Act. Are those supposed to be treated the same, or are those supposed to be basically a cognitive, a specific difference that they're drafted differently, right? What does jurisdiction mean going back to con law, et cetera, et cetera, et cetera? So again, you could do an entire podcast on the birthright citizenship debate. Don't want to do that. But I was just pointing to the listeners sort of where that comes from, what the piece is about. It's from that, what does the exceptions under subject to the jurisdiction thereof mean? So those are clearly the two parts that everybody says. Civil Rights Act 1866, yes. Dred Scott, no. The 14th Amendment also has a couple of pieces that are designed to show Earth Reconstruction. So one, and and some there's at least some historians that have argued these were actually the most important parts at the time. So section two has a voting rights piece, which effectively says this will sound sort of horrifying to a modern audience, but basically they say if a state wants to have sort of arbitrary rules on suffrage, you know, not stated explicitly, but if you would like to disenfranchise a popul set of your population, you'd lose that much percentage of your allocation. So it's almost like inverting the three-fifths clause and saying, you want to give this up, go for it. Knowing that this, you know, the southern states don't want to suddenly have 10% of their electorate on that front, right? So very quickly they decide that doesn't work, which is why we talked about last time with the 15th Amendment. The other piece that uh it has is section three. I'm gonna skip over the section four on the public debts, which nobody in their right mind cares about, other than people who say it means you that various kinds of currency is unconstitutional or whatever. Um but section three basically sets restrictions on basically former Confederates serving in government. It's kind of a long convoluted list. But basically, if it's you were in the federal government, if you were a state legislator and you engaged in insurrection or rebellion or gave aid and comfort, you do not basically get to serve uh in Congress. Or you know, or in state government. And there is a provision that lets Congress basically waive this by a two-thirds vote, but effectively, we can skip the arcane of how Andrew Johnson basically effectively makes that section uh unenforceable. So that section uh means that rather than basically the Confederacy being politically locked out, they're able more or less to take control of the Southern governments. They call them the Redeemers in the early 18, early 1870s. So those are the sort of contemporary pieces of the 14th Amendment. Then we get into a little more stuff with the Civil Rights Act, but but I'll pause, I'll pause for there.

SPEAKER_00 7:41

I mean, so as I'm looking at this and kind of following along with you, really we're looking at, you know, section three at the time is just ensuring that nobody from the Confederacy has can be president, vice president, just hold these kind of bigger offices. But then really, especially when you know when we talk about things.

SPEAKER_01 8:06

Like they also can't serve in in state government, right? Hold any office civil or military under the United States or under any state.

SPEAKER_00 8:13

I mean they really thought this through to make sure. But when we're talking about, you know, the 14th Amendment today, a lot of what we talk about is in that section one.

SPEAKER_01 8:29

Yes, section one is about the we don't really care about at this point.

Due Process And Equal Protection

SPEAKER_00 8:32

Yeah. And you brought up, you know, the birthright citizenship. That part, and correct me if I'm wrong, was originally so that any former enslaved person is a citizen, right? They don't have to go through this process. They were born here, they are a citizen. And then it has, you know, then it's extended into lots of different things. It's still even debated today. Um is there anything else in the in these sections that specifically is trying to undo, you know, you talked about Dred Scott, like right, that kind of gets rid of that. Is there anything else in the 14th Amendment that is actively trying to undo what has previously been done to enslaved persons?

The 1875 Civil Rights Act

Public Accommodations And The State

SPEAKER_01 9:20

Yes. So I mean, section one is uh where almost again you were sort of alluding to where almost all the stuff we talk about today comes, but most of those are still coming from things that were happening then. So so the second section, or the second line of section one, excuse me, uh no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. I'm gonna hold that one for the second one, but that is basically saying whatever we think our core rights are, states can't deny those. And how we how we measure those again. We'll talk about that in its own podcast. Nor shall any state deprive, and this is notable. So the first sections are about citizens, right? No state shall abridge the privileged immunities of citizens. Then the third section, the third sentence, or I guess it's clause really, it's a semicolon. Nor shall any state deprive any person of life, liberty, or property without due process of law. So that's basically taking the language of the Fifth Amendment, that's a guarantee of the federal government, and saying sort of basic legal process. Anybody has access to basic legal process in the citizens. Anybody. There's again, the there's a little bit, yeah. So yeah, not just citizens. So that's that's person. And then finally, the, and we'll talk about that a little bit in the next section, and then finally the nor deny to any person within its jurisdiction the equal protection of the laws. This is probably the section of the 14th amendment that I think is most famous. Um, it is the most convoluted in some sense, right? Because the language doesn't say nor deny to any person, you know, equality. You know, equal protection of the laws has a very has a you know complicated meaning. And so this is dealing with both a problem then, but also has implications for today. So the narrowest version of this is one that a former uh ASU colleague has argued, uh, at the very least, equal protection of the laws is a guarantee of an equal enforcement. But so think of you can think of this as basically this part binds the executive branch, right? So a sheriff can't say, I will only enforce laws against one group of people. Or conversely, I'm not going to bother protecting another group of people with those laws, right? So effectively that has to be sort of equally implemented on those grounds. You can't just arbitrarily say, like, yep, I like them, I don't like them, which goes back to sort of the old idea from forever, you know, English civil liberties that the executive can't just suspend the laws for arbitrarily. The Supreme Court's case law uses equal protection to basically say that the state must pass or the state has to have a sort of legislation implementing various kinds of political political equality, so uh or or particularly within sort of civil equality. So this is where the civil rights acts were often justified according to the case law. Really, really our nerdy constitutional historians have suggested that actually that might weirdly come from section one. They all basically say, like, we can do these kinds of things, but they don't they don't specify in the 14th Amendment debates, this part controls this bill, this part controls this bill. It's very frustrating for like originalist scholars to go and deal with this. But so the the whatever section you want to say it's coming from, like the Civil Rights Act of 1875 comes from this section one as well. And the Civil Rights Act of 1875 is the sort of initial effort to guarantee racially neutral access to public accommodations. And it's worth noting, people collapse this down. Public accommodations doesn't mean any private business, it doesn't mean anything that you can walk into. It is an old set of understandings of English common law, which were certain kinds of businesses that effectively, under sort of the fiction of English common law, were acting as agents of the king when you're traveling in the king's realm. So uh this doesn't mean a grocery store. This does mean an inn or a ferry or a carriage or something where like you have to access this while you're traveling through the king's realm. And the old deal was effectively you got certain regulations, exemptions, and in exchange, you got other regulations that were set on you. And so the Civil Rights Act of 1875 says effectively state anyone can have access to these things as uh on racially neutral grounds, because again, if you note the language of the 14th Amendment, Section 1, it's all no state shall, no state shall, no state shall. Restrictions on the state government, to which folks would argue is is Motel 6 the state? No, it's not, strictly speaking. And so this is why this the public accommodations laws are drafted at, which is no, the Motel 6 isn't Arizona, but under common law, it was held to basically be a quasi-state agent that had certain guarantees. And so that's why, again, it's drafted that way. Uh the Supreme Court strikes down the Civil Rights Act of 1875 in 1883, in a case that I think it's sort of unfairly pilloried. It's attacked as like, oh, this is Congress, the Supreme Court trying to wipe out civil rights law. If you actually read the case, it's much more technical. And I think I'm not the only scholar that thinks this, it could have been very easily redrafted by Congress to fix the basically evidentiary rules because the language of the 14th Amendment says no state shall do X, right? And so for the federal government to act, the state clearly has to have failed.

unknown 15:03

Right.

1883 Strike Down And The Road To 1964

What Comes Next In Part Two

SPEAKER_01 15:04

And so the argument they make in the civil rights case is they say, we have no evidence that state courts have failed to enforce these guarantees. We have no evidence in the evidentiary record. And they're not actually wrong about that, because Jim Crow doesn't pop up immediately in the late 1870s, it pops up later. So Congress very easily could have redrafted that uh to fix that. But going back to what we talked about in the previous podcast, Grover Cleveland and his allies want no part of this. And so when the Supreme Court basically says it's unconstitutional on these technical grounds, rather than like, oh, well, let's fix those technical grounds, they say, nope, gone. So so that ha so that gets gets struck down and stays dead until basically the Civil Rights Act of 1964, which again, strictly speaking, is listed in the language of public accommodations, not every business, at least for the the access part. So look that's that I think sort of gets us to the sort of contemporary, I guess I should say then contemporary issues, and we can talk a little bit more about the more our contemporary pieces. I'll save those for another one.

SPEAKER_00 16:11

And the 14th Amendment, I mean, we definitely have, and my AP Gov friends will know these words, du jour and de facto right, what the law says, and then what's actually happening. And there's gonna be a lot of Supreme Court cases. I mean, I feel like the 14th Amendment is so rich in constitutional discussion because of this. So we are on our next episode, too, we're gonna talk more about incorporation, more about these things. So, Dr. Beinberg, thank you so much. And listeners, make sure you listen to our next episode, our part two for the 14th Amendment.