«The Fourteenth Amendment and It’s Citizenship As a result of the civil war and the 13th Amendment, there were many newly freed blacks who had no ...»
The Fourteenth Amendment and It’s Citizenship
As a result of the civil war and the 13th Amendment, there were many newly freed
blacks who had no place in American society and no rights guaranteed to them through
citizenship. Thus the Fourteenth Amendment was drafted and eventually ratified to help fill this
gap and to give these free blacks a set of protected freedoms through a United States citizenship,
whereas they previously couldn’t be a citizen of the United States as was declared by the supreme court in their decision on the Dred Scott case (Scott). There was much controversy over this amendment however, and even down to today there are many different perspectives on things such as whether it was lawfully ratified, the intent, and the end result of what the Fourteenth Amendment, and specifically section one of this amendment, so bravely set out to accomplish.
The intent of the first section of the Fourteenth Amendment, as was briefly mentioned before, was to give protected rights to blacks by making them United States citizens. However, there was actually more to this. Rights secured from this amendment “were the rights... not just of freedmen,” but for “all persons” (Schwartz 23). “White men as well as blacks were being denied their rights,” (Meyer 33). The idea of a national citizenship wasn’t a new idea though.
Previous to this amendment, national citizenship was implied, as can be seen when reviewing Article 2 of the United States Constitution (U.S. Const.). Many people felt that the first clause of this amendment did nothing besides state that which was already being done in law done and merely helped to clarify the subject, and clarification was only needed because of the “... opinion in the Dred Scott case,” (James 180). The effect of the Fourteenth Amendment was creating two “spheres” within a single government, a federal sphere and a state sphere (Tiedeman 91). This lead to what became known as a dual citizenship wherein we are citizens of both the United States, and the specific state where we live.
The wording of the Fourteenth Amendment, section one: “... are citizens of the United States and of the State wherein they reside,” seemingly implies that to be a United States citizen you must be a citizen of a state as well (U.S. Const.) However, there were territories, owned by the federal government, which had not achieved statehood yet through the territorial process or through any other means. As such, this amendment intended to include these people as well in giving them rights through United States citizenship as well. Supporting this is the opinion of the Slaughterhouse Cases: “... a man be a citizen of the United States without being a citizen of a State,” (Slaughterhouse Cases). Conversely, the opinion in Fowler v. State of Louisiana is, “... a person may be a citizen of a particular state and not a citizen ofthe United States. To hold otherwise would be to deny the state the highest exercise of its sovereignty, - the right to declare who are its citizens,” (Fowler). Based upon these two court decisions, we can see that each citizenship is separate from the other, neither being required to attain the opposite.
An interesting fact then is presented from the case Cruikshank v. United States is, “The citizen cannot complain, because he has voluntarily submitted himself to such a form of government," (Cruikshank). This quote is referring to a citizen of both the United States and a state. Take note the mention of voluntarily submitting yourself to this form of government and citizenship. As stated in Aroer v. United States, “Under constitutional amendment 14, United States citizenship is paramount and dominant, and not subordinate and derivative from State Citizenship," (Aroer). Consider the previous quote, and when paired with this one from Twining v. New Jersey: "There can be no doubt... that the civil rights sometimes described as fundamental and inalienable, which before the war amendments were enjoyed by state citizenship and protected by state government, were left untouched by this clause of the 14th Amendment," we see two major things (Twining). First, the federal citizenship is dominant over the state citizenship. Secondly, the state citizenship still retains all of the power and sovereignty which it held prior to both the civil war and the ratification of the Fourteenth Amendment.
Having kept in mind that United States citizenship is voluntary, we can’t help but ask the question, “But how is it voluntary when upon birth I became a citizen of the United States and of the state I was born in?” On July 27, 1868, congress passed an act entitled, “An Act concerning the Rights of American Citizens in foreign States.” This act was passed one day before the Fourteenth Amendment was declared ratified. If the Fourteenth Amendment was what created the duel citizenships, then that would imply that anyone with a citizenship to a state would be to whom this act was passed for, and upon ratification of the Fourteenth Amendment, another citizenship is being imposed upon them. Citizenship, as defined by Black’s Law Dictionary, implies an individual owing allegiance to a government (310). Thus, they are voluntarily taking on this new federal citizenship by not disavowing it and this new government, or part of government.
The common delusion which we are under is thinking that we gain more from having this duel citizenship. Read this quote from the court case West v. Louisiana: “The right of trial by jury in civil cases, guaranteed by the 7th Amendment, and the right to bear arms, guaranteed by the 2nd Amendment, have been distinctly held not to be privileges and immunities of citizens of the United States guaranteed by the 14th Amendment against abridgement by the states, and in effect the same decision was made in respect of the guarantee against prosecution, except by indictment of a grand jury, contained in the 5th Amendment, and in respect of the right to be confronted with witnesses, contained in the 6th Amendment," (West). Therefore, if you are a citizen of the United States, the rights you thought you had from the Constitution suddenly don’t fall into the “privileges and immunities” which the Fourteenth Amendment gives to you.
Moreover, you can’t fall back onto your state citizenship for these guarantees because, as stated before, federal citizenship is above that of the state.
This isn’t to say that you don’t gain anything from having that federal citizenship though.
“So, if you are a state Citizen who is not also a federal citizen, you can't vote, you can't serve on a grand jury, and you can't serve on a trial jury either,” (Mitchell). Of course, if you must to choose between being able to vote and serve on a jury, and being able to have the United States Constitution defend our rights, I’d definitely not choose the voting and jury duty. You aren’t necessary even entitled to a trial by jury in certain instances as a federal citizen of the United States.
With all of this stated, we can’t help but look at how the leaders of the country could let this happen after having fought so hard to achieve independence. After all, even if it isn’t as unconstitutional as it sounds, you would think that there would be too much controversy to get it to pass through congress. April 2, 1866 marked the end of the “insurrection” with a proclamation restoring the states which had rebelled back into the union and ended by stating, “... and is henceforth to be so regarded,” (U.S. Cong. House). Thus, the state’s representatives took their place in congress with the rest of the Union in determining whether to ratify the Thirteenth Amendment. “When the 39th congress assembled on December 5, 1865, the...
representatives from the 25 northern states voted to deny seats in both houses of congress to anyone elected from the 11 southern states,” (Dyett). This was done based on the grounds that the people whom represented the southern states in congress were “old Confederates” (Faragher 504). “... they included 9 confederate generals and colonels, and for good measure threw in Alexandar H. Stephens, their “Vice-President,” (Meyer 48). Hayes’ diary entry read, “we organized the House according to program,” (James 38). So, while the southern representatives were out of congress, the northern representatives were able to get 33 out of 50 senators in favor for the resolution, a mere 1 short of the required two thirds of those who were seated (Dyett). In what may have been an act of desperation, two thirds of the senators voted to unseat John P.
Stockton, a very outspoken senator from New Jersey who strongly opposed the bill (Dyett).
With him unseated, they were able to pass the resolution through the senate and send it on to the states.
The proposal for the Fourteenth Amendment failed by March 17, 1867. With 17 states ratifying it, 10 rejecting it, and California abstaining, which is equal to that of a rejection (Dyett).
Amongst the chaos and confusion of the times, something unexpected happened considering the rejection, deliberation went on. “Despite the fact that the southern states had been functioning peacefully for two years and had been counted to secure ratification of the Thirteenth Amendment, Congress passed the Reconstruction Act, which provided for the military occupation of 10 of the 11 southern states. It excluded Tennessee from military occupation, and one must suspect it was because Tennessee had ratified the Fourteenth Amendment on July 7,
1866. The Act further disfranchised practically all white voters and provided that no senator or congressman from the occupied states could be seated in Congress until a new constitution was adopted by each state which would be approved by Congress, and further provided that each of the 10 states must ratify the proposed Fourteenth Amendment, and the Fourteenth Amendment must become a part of the Constitution of the United States before the military occupancy would cease and the states be allowed to have seats in Congress,” (Dyett).
Practically at gun point, many of the southern states began to ratify the proposed amendment. Simultaneously to this, however, many of the northern states began to withdraw their previous ratifications of the proposed amendment and actually began to reject ratification in light of the forced ratification being drawn out of the southern states. Regardless, the Secretary of State “on July 20, 1868, issued his proclamation,” stating, “it was his duty under the law to cause amendments to be published and certified as a part of the Constitution when he received official notice that they had been adopted pursuant to the Constitution,” (Dyett). The only possible way that the ratifications could have added up to the needed 27 states to ratify the Fourteenth Amendment would be “to count those states which had first rejected and then under the duress of military occupation had ratified, and then also to count those states which initially ratified but subsequently rejected the proposal,” (Dyett). So as we can see from the account given in the Utah Supreme Court, the Fourteenth Amendment wasn’t ever lawfully ratified, or if it actually was, then it almost definitely wasn’t done in any sort of a moral way. Either way, it never should have been put into the constitution.
Even recently there has been deliberation as to the legalities surrounding the Fourteenth Amendment. In the House of Representatives on June 13, 1967, there was talk as to the possibility of declaring the Fourteenth Amendment unconstitutional. This was lead by the Honorable Leander H. Perez and is documented in the House Conressional Record as part of “The 14th Amendment – Equal Protection Law or Tool of Usurpation”.
So where does this leave us now? With a unscrupulously ratified amendment which causes a lesser citizenship to be imposed upon us without our asking, and indeed this is how it affects us today as well. The real question is, “Is this what the framers of the Fourteenth Amendment envisioned the entire time? Or is this a mishap which they didn’t anticipate would get corrupt over time?” From my research, I would surmise that it was intended to encompass everyone, whites as well as blacks, natives as well as immigrants. It was a document free of racism. However, I think that the full recourse of what was to become of this amendment had to have been known because of two reasons. First off, the amount of opposition which the bill received. It was even vetoed by President Jackson, but congress passed over his veto. The second reason is because the framers of the Fourteenth Amendment knew what the words they were using meant, and they knew how they worked together. “Congress didn’t forget about the proper use of English,” (Hansen 3-36).
Aroer v United States, 245 U. S. 366, 38 S. Ct. 159, 62 L.Ed. 349.
Black, Henry. Black's Law Dictionary. Rev. 4th ed. St. Paul: West Publishing Co., 1968.
Cruikshank v United States, 92 U.S. 542 (1875).
Dyett v Turner, 439 P.2d 266, 270 (1968).
Faragher, John M, et. al. Out Of Many. vol 1, 4th ed. New Jersey: Pearson Education, 1994.
Fowler v State of Louisiana, 6 S. 602; 41 La. Ann. 380 (1889).
Hansen, Christopher. The Great IRS Hoax: Why We Don’t Owe Income Tax, 2000.
James, Joseph. The Framing of the Fourteenth Amendment. Urbana: University of Illinois Press, 1965.
Lyon, L. C. The Day Our Country Was Stolen: How the 14th Amendment Enslaved Us All Without a Shot Fired, http://www.supremelaw.org/authors/lyon/index.htm.
Meyer, Howard. The Amendment That Refused to Die. Rev. ed. Boston: Beacon Press, 1978.
Mitchell, Paul A. State Citizens Cannot Vote, 1996.
http://www.supremelaw.org/press/rels/votingaz.htm Schwartz, Bernard, ed. The Fourteenth Amendment. New York: New York University Press, 1970.
Scott v Sandford, 60 U.S. 393 (1856).
Slaughterhouse Cases, 83 U.S. 36 (1872).
Tiedeman, Christopher. The Unwritten Constitution of the United States. New York: The Knickerbocker Press, 1890.
Twining v. New Jersey, 211 U.S. 78 (1908).
United States. Cong. House. The 14th Amendment - Equal Protection Law or Tool of Usurpation. US 90th Cong., 1st sess. HR 208. Washington: GPO, 1967.
U.S. Const. amend. XIV, § 1 U.S. Const. art. II, § 1, cl. 5.
West v Louisiana, 194 U. S. 258.