Explaining the 14th Amendment in Non-Technical English

This article was originally published on wordpress.com, but I moved it here and updated it in 2014.

Back in 2011, when I wrote this, my daughter was in middle school.  One of her assignments was to select from a small list of amendments to the US Constitution and write a short paper about it. She asked me which one, and I told her to pick the 14th amendment. Lots of meat in that one. I asked her to do some research and know what came up? Explanations useful for college-level work, but nothing for a middle school student. Sure, there were sites that talk about the constitution in general, and about what an amendment is, but nothing that looks specifically at the 14th amendment, written in simple words for a non-law-student to understand.

So, I’m posting this post here. I hope, through the magic of Bing and other search engines, parents and kids may find this in the future and it could be helpful. Kids: don’t steal my words for your homework. Use this site to understand, but your assignment should be in your own words. Parents: there are lots of sites that make things up about the Constitution and 14th Amendment. This post will stick to facts from actual court cases. If you feel I’ve missed something, feel free to comment. I take all comments seriously.

The Constitution and Amendments, Kids version

We all know what the constitution is, right? It is a document, hand written on paper, that writes down the “rules” that our Government follows. It defines the entire system. All the stuff about the government that you study in school comes from this one document. It is shorter than your textbook. A lot shorter. But it is a little tough to read.

Ever wonder why we have a Congress and a President? After all, England doesn’t. They have a parliament and a Prime Minister (and the Queen, of course). We have a Congress instead of a parliament. Why the difference?

Because a group of well educated men decided that England was OK, but we could do better. They wanted to make a “better way” to run a country. They came up with some ideas, and borrowed good ideas from other places. They wrote down those ideas. Then they argued about them. There were disagreements, but they were reasonable men, and they compromised. The final document, with all the changes that they wanted, was signed by the entire group. That document is the US Constitution.

Here’s the rub. It was written by a group of educated white men (no women) over 200 years ago. How did they get it right? To be honest, they didn’t. They made mistakes. But, to their credit, part of the constitution gives a set of rules for how to change the constitution. Each change to the constitution is called an “Amendment.”

This is a short blog post, so I’m skipping to the reconstruction amendments. There are plenty of parts of the constitution, and its amendments, that are really interesting and important. The 14th amendment is not better or more important. It’s just what I want to talk about today.

The Reconstruction Amendments – 13, 14, and 15

The civil war has just ended. Abraham Lincoln freed the slaves, and the armies of the north swept through the states of the confederacy, defeating the rebel army and burning towns and cities as they marched until the south surrendered. Super… now what? What changes to the laws should the government make in order to end slavery for good, and stop all the arguments that led to the war in the first place?

First thing to understand is that Abraham Lincoln freed the slaves without asking Congress. There was no law preventing slavery, and in fact, the “border states” still had slaves. So the 13th Amendment to the US Constitution simply sets them free. It is really short. Slavery is over, and Congress has the right to pass laws to abolish it.

That means that slaves are no longer the property of other people… but were they citizens? Could they own land? Could they get married? Would there be one set of laws for white people, and another set of laws for black people? Setting the slaves free was only the first part. Making sure that they would be treated fairly required another amendment. Here comes the 14th amendment, which says that everyone has to be treated equally. You cannot have one set of laws for white folks, and another set for black folks.

Yet, arguments remained. We have established that former slaves are free, and that the laws have to treat them fairly, and that they are citizens. However, it wasn’t clear that they had the right to vote. This is an important consideration, because if these new free men can vote, they could vote for a black person to come to Congress. Racism was still quite common. The thought of asking a black man for his honest opinion about a law would not have occurred to many people. Letting a black man write a law that a white man would have to follow seemed impossible to believe.

It is at moments like this that good people look to the principles that they live by. Our feelings can be wrong, but if we look to the principles, we can change. Thomas Jefferson wrote, in the Declaration of Independence, that the rights of men were given by God, not by governments, and that all men have the right to “life, liberty, and the pursuit of happiness.” That has to include black men, even if they used to be slaves. Even if most of those newly freed men and women could not read or write. They had the right to pursue happiness.

So the 15th amendment resolved the issue. They had the right to vote. Race didn’t matter.

Sounds like ancient history, doesn’t it? It’s all great that we ended the civil war, and we set the slaves free, and that we had to make three amendments to do it. But what does that have to do with me?

More than you think. The 14th amendment continues to affect us every day.  Let’s look at the 14th Amendment in a little more detail.

The 14th Amendment

The longest of the three Reconstruction amendments, the 14th amendment was intended to resolve some big questions:

  • Are the freed slaves citizens?
  • Could they own property, like white people?
  • Do the courts have to treat the freed slaves the same as white people?
  • Do we count them when figuring out the number of representatives from each state?
  • Now that the war is over, do we let former “rebels” get elected to Congress?
  • Some of the southern states took out loans to pay for their part in the Civil war. Does the government have to pay those loans back?

I’ll take on each of these ideas one at a time.  To read the full text of the 14th Amendment, visit Wikipedia.

Who is an American Citizen and what does that mean?

The idea of someone being a citizen goes back to the really old laws of England, and in fact, the original authors of the constitution assumed that everyone knew the old laws (called Common Law). According to those laws, if you were born in the country, you were a citizen. If you were born somewhere else, you could become a citizen. However, to make sure that it was crystal clear that the newly freed slaves were citizens, the first clause of the 14th amendment is very specific: if you were born in the US, you are a citizen. This is sometimes called “Birthright citizenship.”

Now, there is an interesting exception written right into the amendment: if you are not “subject to the jurisdiction of the US,” being born here is not enough. This exception is useful for diplomats. Our laws do not apply in a foreign embassy. In the language that lawyers use, we would say that people in the embassy are not “subject to the jurisdiction of the United States.” So if the wife of the ambassador from Spain gives birth to a child in the Spanish embassy in Washington, that child was born in the US, but is NOT a US citizen. Technically, that little bit of space is part of Spain. As far as the law is concerned, the child was born in Spain. It’s a small exception but important, so it’s in the constitution.

Other than that, the basic idea is simple: if you are born here, you are a citizen.  There is some controversy in this simple idea, though. As you may know, there are millions of people around the world who want to come to the United States to live and work. This is a great country. But we can’t let everyone in all at once. That would create a huge problem. So we have rules that try to make it fair. It is like standing in line at a movie theatre. We all want to buy our ticket and get in the door, but we don’t push and shove, because then mean people would get inside first, and the smallest and weakest (and nicest) people may never get inside… so we stand in line and wait our turn.

So when it comes to letting people from other countries move to the USA, we have “lines” that you have to wait in. It can take many years. However, some folks don’t want to wait. They go around the line.  They may fly to the USA on an airplane, tell the officials that they will only be here for 3 months, and then just stay.  Or they may cross a border and simply walk into the United States without telling anyone that they are here. In some places, we have built fences but they climb over them, or dig under them. These people are called “illegal aliens.” Once here, if a woman has a child, her child is a US citizen, even if she is not.

These illegal aliens get fair treatment and real opportunities, but they didn’t wait in line.  There are some very difficult questions, and not many easy answers.  Think about these things, all of which relate to the 14th Amendment.

  • Is it fair to allow that child to be a citizen when their parents broke the rules?
  • If you are child born in another country, but brought here when you were very young, should we let you stay and get educated and become a citizen?
  • What if a rich couple from another country come the US legally, as tourists, and they stay long enough to have a baby. Then they go home (with their new baby). Twenty years later, that baby has grown up in another country, with no knowledge of the american way of life, but he or she can skip around the line and come to the US as a citizen. After all, they were born here, right?

These are interesting problems that we have to deal with today.

Is fairness in the constitution?

Yes. The fourteenth amendment says that “No State shall … deny to any person … the equal protection of the laws.”

This is a big one. That means that a law written for one person has to apply to all people. If you give a citizen the right to buy land, all citizens have the right to buy land. Criminal punishments have to be applied fairly as well. Unfortunately, the equal rights clause didn’t prevent segregation.  Segregation means creating a way of life where people were kept apart from one another.  White and Black people would both be able to live out their lives without bumping in to one another.  Problem is, segregation always ended up giving more rights to white people than to black people.

Clever lawyers figured out that private businesses could discriminate if they wanted to, and even that school districts could create seperate schools for whites and non-whites as long as they offered equal instruction and equal opportunities (an idea that became known as “Seperate But Equal.”)  That didn’t work either.  Black schools were poor – no books, terrible buildings, desks and tables that fell apart, no school supplies, often no electricity at all.  White schools had electricity and heat.  Classrooms were large and comfortable, with plenty of light.  Students could study science with microscopes and music with band instruments.  The differences were huge.  While the 14th amendment said that we had to treat all people the same, America was not ready to change.

The 14th amendment didn’t change… we did

But the country did change. After the second world war, a new generation of Americans took another look at the laws and at the 14th Amendment. The “equal protection” clause, as that bit has come to be known, was central to the Civil Rights movement. Removing segregation, so that black children could attend good schools, happened because the Supreme Court changed their mind. Reversing 70 years of prejudice and fear, the Supreme Court decided that black kids in segregated schools were not being treated fairly… they were not being “protected” by the law in a way that was “equal” to white kids.

Schools were changed, and the lives of every school child in America was changed, when the 14th Amendment was used to remove segregation from schools.  Businesses and social organizations were changed when the Civil Rights Act and the Voting Rights Act used the ideas of the 14th Amendment to require everyone to be treated fairly, even in commercial and private life.

Even today, fifty years after the civil rights movement, the fight against unfair treatment continues.  It is difficult for people to change, and many people grew up in a segregated society, where it was OK to treat people differently.  Others have been taught by parents and churches and school teachers that races should be kept apart.  Fewer and fewer young people have learned the lessons of racism, but these ideas still continue.

Does the 14th Amendment apply only to racial issues?

Equal protection doesn’t just apply to “white” and “black” but anyone who is excluded. The Equal Protection clause has been used to remove barriers so that women could attend military college. It has been used to decide of laws dealing with disabled people are fair, and some judges have referred to the 14th Amendment as the reason that it is not fair to prevent homosexual people from getting married. After all, the government has no reason to allow marriage between Tom and Mary while preventing a marriage between Tom and Joe.  The Supreme Court used the 14th Amendment to strike down a discriminatory law that prevented the government from providing tax benefits and pensions to married soldiers and federal employees just because those couples were of the same sex.

The Due Process Clause – your right to have a judge hear your side of the story

There is one more major principle affirmed by the 14th amendment that you need to understand. This is the principle of “due process.” The words are a bit hard to understand. “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

What does it mean? It means that principle of fairness applies to everyone, EVEN THE GOVERNMENT. This is really important. States cannot make unfair laws and then force people to follow them. If they do, the courts can remove or change the laws.

What makes a law unfair? A law is unfair if it lets the government kill someone, put them in jail, or take away their stuff without being fair, using a court, providing attorneys who can fight on your behalf, giving people a chance to appeal, and doing things the same way for everyone. The law applies to everyone, and no one can create unfair laws.

For example, let’s say that the police have to solve a crime.  A man has been killed, and they have come to your house to arrest you.  Let’s say that they take you to a room and question you for hours, without telling you that you can get an attorney just by asking for one.  Let’s say that they lie to you, and tell you that you have to answer their questions, and then they keep throwing questions at you like “why did you kill him?” and “how much money were you paid to kill him?” (all of which assume that you did the crime).  They can keep questioning you for hours, essentially torturing you until you confess.  Are you being treated fairly?

True story.  This happened.  In 1966, the Supreme Court ruled that Ernesto Miranda was convicted of a crime without anyone telling him that he had rights to an attorney and that he didn’t have to answer questions.  He challenged his conviction on the basis that he was not offered Due Process at his trial.  The court agreed and, as a result, all police in the United States today will tell you that you have the right to remain silent and that you have the right to have an attorney.  (Note: In this case, Ernesto Miranda was given a new trial, where he was convicted on other evidence and sent to jail.)

Why was the idea of Due Process repeated in the 5th and 15th Amendment?

Due Process of Law is not a new idea. The notion of Due Process goes back to a really old document called the “Magna Carta” that was written 500 years before the US Constitution! The Magna Carta was written in the year 1215. It is the document that defines the governing principles of England. Our entire legal system is based on the concepts of the Magna Carta, including the idea that the government itself (even the King of England) has to follow the law. A King can’t just change the law to suit his whim and say “I will take your stuff because I’m the King, and I just made a new law that says your stuff belongs to me.”  That idea of fair treatment under the law is called “Due Process.”

In fact, this is not the first amendment to mention Due Process. The fifth amendment, part of the Bill of Rights, insures that the government will provide Due Process, but the fifth amendment is flawed — it only applies to the Federal government, not to the government of the individual states. The Fourteenth amendment fixes that flaw.  The 14th amendment specifically requires that State governments follow the same principle.

Last bits of the 14th Amendment

Most of the principles I’ve described above: birthright citizenship, equal protection, and due process, are part of the first section of the 14th Amendment. There are four other sections. However, those parts are not as interesting.

  • Section 2 says “we will count a citizen as a whole person.” Before the civil war, slaves were counted as 3/5ths of a person (five slaves were counted as the same as three white people). Counting is important because that is how we know how many representatives will be in Congress from each state.
  • Section 3 says that southerners who fought against the country cannot be part of the government, and that everyone who wants to be in the government has to agree to the constitution. The idea was to prevent the rebels from being in power.
  • Section 4 says that any loans that the southern states took from banks in France and England were not going to be repaid by the Federal Government.
  • Section 5 is really short, and says that the Congress shall write laws that enforce this amendment.

All in all, the 14th Amendment is a very important part of the US Constitution. Our lives have been changed by the simple and powerful words of the 14th amendment. There are many questions yet to be answered.

Kids: think about the ideas of fairness? Should the government be fair to its people? Should the government require us to be fair to each other?

Draw your own conclusion. There are no right or wrong answers. That is the great thing about a democracy.