Citizenship, Equal Protection and the Ballot in the 14th and 15th Amendments

You have heard the phrases a thousand times. Equal protection. Due process. Birthright citizenship. Politicians shout them, lawyers argue them, and cable hosts treat them like trump cards. Now here is my challenge: without looking, tell me what Section 3 of the 14th Amendment says. Or Section 4. Or what the 15th Amendment's second section is for.

If you cannot, you are in good company, because most of us have never read the text. That is a shame, because these two amendments are Republican handiwork, written by a Republican Congress in the years right after the Civil War, and they rewired the relationship between the citizen, the state and Washington. If you want to argue about them, and every conservative should, you need to know what they say. So let us read them, clause by clause, the way you would read a contract before signing it.

The problem the authors were solving

Start with why they existed. In 1857, in Dred Scott v. Sandford, the Supreme Court had held that people of African descent could not be citizens of the United States. The 13th Amendment ended slavery in 1865, as told in From the Emancipation Proclamation to the 13th Amendment in Dated Steps, but it did not say what the freed people were. Citizens? Residents? Something in between?

The answer from the Southern states, once they began reorganizing in 1865, was the Black Codes: state laws that restricted where freed people could live, what work they could do, and whether they could own property or testify in court. The Republicans in Congress read those laws and concluded that freedom without legal rights was a fraud. They had two tools: a statute and an amendment. They used both.

The Civil Rights Act of 1866

First came the statute. The Civil Rights Act of 1866 declared that all persons born in the United States, and not subject to any foreign power, were citizens, with the exception of Native Americans not taxed. It then guaranteed those citizens the same right "in every State" to make and enforce contracts, to sue, to give evidence in court, and to buy, own and sell property, and to enjoy the full and equal benefit of the laws.

President Andrew Johnson vetoed it on March 27, 1866. He argued that it gave rights to Black citizens that white citizens did not have and that it intruded on the states' control of their own affairs. Congress overrode the veto on April 9, 1866, making it the first major law passed over a presidential veto. The story of the fight between Johnson and the Republican Congress is told in full in Johnson's Vetoes, the Overrides and the Impeachment That Fell One Vote Short.

Here is where the lawyers entered. If Congress could pass a civil rights law by simple majority, a later Congress could repeal it. And some members had doubts about whether Congress even had the power. The solution was to put the principles into the Constitution, where neither a future Congress nor a hostile President could simply wipe them out.

The 14th Amendment, section by section

Congress proposed the 14th Amendment in June 1866. It has five sections, and every one matters.

Section 1: citizenship, privileges, due process, equal protection. This is the famous one. It begins: "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." That overruled Dred Scott. Then comes a list of limits on the states. No state shall make or enforce any law that abridges the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Four ideas packed in a few lines: citizenship, privileges or immunities, due process and equal protection. Note that the last two protect "any person," not only citizens.

Section 2: representation. The old Constitution counted enslaved people as three-fifths of a person for purposes of apportioning seats in the House. With slavery gone, the Southern states would have gained seats by counting all freed people while denying them the vote. Section 2 said that if a state denied the vote to male citizens twenty-one or older, with narrow exceptions, its representation in the House would be reduced in proportion. Think of it as a penalty clause. It has essentially gone unused, since the 15th Amendment took a more direct approach.

Section 3: no office for oath-breaking insurrectionists. It bars anyone who had taken an oath to support the Constitution as an officer, and who then engaged in insurrection or rebellion against it or gave aid and comfort to its enemies, from holding certain offices, unless two-thirds of each house of Congress votes to remove the disability. It was aimed at former Confederate officials. In a 2024 case, Trump v. Anderson, the Supreme Court held that states may not enforce Section 3 against candidates for federal office, leaving that to Congress. Whatever you think of the politics, notice what the Court did: it read the text and the enforcement clause closely.

Section 4: the public debt. It says the validity of the public debt of the United States, including pensions and bounties for Union service, shall not be questioned, and that neither the United States nor any state shall pay any debt incurred in aid of insurrection or any claim for the loss of an emancipated slave. In plain words: the Union's bills get paid, and the Confederacy's do not.

Section 5: enforcement. Congress has the power to enforce the amendment by appropriate legislation. Remember this one. It is the reason Congress, not just the courts, has a role in protecting these rights.

How the 14th Amendment was adopted

Here is a fact worth knowing: the 14th Amendment was a Republican measure. It passed Congress in June 1866 with the votes of Republicans, and the Democrats opposed it. President Johnson opposed it too and urged the Southern states to reject it, and most of them did.

That rejection backfired. After the 1866 elections gave Republicans a larger majority, Congress passed the Reconstruction Acts in March 1867 over Johnson's veto. They divided the former Confederate states, other than Tennessee, into military districts and set conditions for readmission, including ratifying the 14th Amendment. The amendment was ratified on July 9, 1868, and the Secretary of State certified it on July 28.

The 15th Amendment, both sections

The 15th Amendment is shorter and easier. Congress proposed it in February 1869, and it was ratified on February 3, 1870. Section 1: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Section 2: Congress shall have power to enforce the article by appropriate legislation.

Read that first section carefully, because it is often misdescribed. It does not say that every citizen has a right to vote. It says the vote cannot be denied or abridged on account of race, color or previous condition of servitude. It is a prohibition on a particular kind of discrimination, not a general grant of the franchise. States kept, and still keep, wide authority over voting rules, such as registration deadlines, residency requirements and identification, subject to this limit and to later amendments.

That distinction matters in election-law debates today. A rule that is neutral on its face and fairly applied is a different thing from a rule designed to keep voters of one race from the polls. In 2008, in Crawford v. Marion County Election Board, the Supreme Court upheld Indiana's photo identification law for voting. A conservative can argue for ID laws on policy grounds, as most of us do, and the law as the Court read it permits them. What the 15th forbids is the discriminatory purpose. The 15th was also ratified at a time when women could vote in almost no place in the country, and that omission split the suffrage movement and was corrected only by the 19th Amendment in 1920.

What the Slaughter-House Cases did to Section 1

Now to the part that surprises people. The Supreme Court, within a few years, took the sharpest tool out of Section 1.

In 1873, in the Slaughter-House Cases, the Court heard a challenge by New Orleans butchers to a Louisiana law that gave one company a monopoly over slaughtering in the city. The butchers argued that it violated their privileges or immunities as citizens, including the right to practice their trade. By a vote of five to four, the Court disagreed. Justice Samuel Miller wrote that the Privileges or Immunities Clause protected only the rights of national citizenship, such as access to the seaports or protection on the high seas, and not the broad rights that belong to state citizens.

The consequence was large. The clause that the authors may have intended as a broad guarantee of fundamental rights against state abuse became close to a dead letter. Later courts did the work in other ways:

1. Due Process. Beginning in the early twentieth century, the Court held that most of the Bill of Rights applies to the states through the Due Process Clause, a doctrine called incorporation. In McDonald v. City of Chicago in 2010, the Court applied the Second Amendment to the states that way, while Justice Clarence Thomas wrote separately to say the Privileges or Immunities Clause was the proper home. The tangle is explained in Heller, McDonald and Bruen Explain How Judges Now Read the Second Amendment.
2. Equal Protection. The Court used this clause in Brown v. Board of Education in 1954 to strike down school segregation.

Here is the conservative angle, and a lively one. Many originalists argue that Slaughter-House was wrongly decided, that the clause should be revived, and that doing so would give courts firmer ground to protect economic liberty and individual rights. The butchers' case was, after all, about the right to earn a living free of an arbitrary government monopoly. If you want a modern echo, the license you need to braid hair and the jobs it quietly kills is about the same instinct. And for the method behind the argument, Originalism Explained for People Who Skipped Law School is a good primer.

The objection: the South never really consented

The opposing case is old, and it is worth stating at full strength. Critics argue that the 14th Amendment was illegitimate. Congress proposed it while ten Southern states had no representation, and the states then had to ratify it as a condition of readmission under the Reconstruction Acts. That, the critics say, is not consent. It is coercion, and an amendment adopted under duress has no moral authority.

I disagree, and here are my reasons.

1. The Southern states had left the Union and made war on it. The terms of their return were a legitimate subject for the victors to set.
2. The same issue was put to the voters. The 1866 midterm elections turned heavily on the 14th Amendment, and the voters in the loyal states returned a Republican majority.
3. The ratification count was clear. The amendment was approved by three-fourths of the states under the process the government then recognized, and the Supreme Court has treated it as valid law ever since.
4. A rule that lets the losing side veto the peace terms is no rule at all. If the rebel states could have rejected the amendment and returned to Congress on their own terms, the war would have settled nothing.

Is this a factual argument or a value argument? A bit of both. The facts are the sequence of events. The value is that I think a Union that fought for four years to survive was entitled to define the terms of its own repair.

Where the arguments live today

Two fights stand out, and I'll treat them fairly. The first is birthright citizenship. The text says "born or naturalized in the United States, and subject to the jurisdiction thereof." In 1898, in United States v. Wong Kim Ark, the Court held that a child born in the United States to Chinese parents who were living in the country permanently was a citizen. The debate now turns on what "subject to the jurisdiction thereof" means for other groups, and what it meant to the Congress that wrote it. What the 39th Congress Meant by Subject to the Jurisdiction Thereof goes through the text and the debates, and Three Roads to Changing Birthright Citizenship and Which One Works sets out the ways one might change the rule. Read both before you take a side, and read the amendment itself.

The second fight is over federal power in elections. Section 2 of the 15th and Section 5 of the 14th are why Congress can pass laws on voting. How far they reach is argued in the courts, and Republicans have a long record of their own on the subject, such as the 1890 federal elections bill described in The 1890 Lodge Force Bill and the Elections Law Republicans Could Not Pass. The Reconstruction-era use of these powers against the Klan is in Grant, the Enforcement Acts and the Federal Government's War on the First Klan.

The bottom line

• The 14th Amendment (1868) made everyone born or naturalized here a citizen and bound the states to respect privileges or immunities, due process and equal protection. The 15th (1870) bars denying or abridging the vote on account of race, color or previous condition of servitude.
• Both were Republican measures. They passed Congress with Republican votes, over Democratic opposition, and over the resistance of President Andrew Johnson.
• The Slaughter-House Cases of 1873 narrowed the Privileges or Immunities Clause, which is why courts since have used Due Process and Equal Protection instead. Many conservative legal thinkers want the older clause revived.
• Read the text before you argue. The 15th Amendment does not grant a right to vote to everyone; it forbids racial discrimination in voting, and that distinction matters when someone makes a claim about election rules.
• Whatever you think about the live disputes, birthright citizenship and the reach of federal power over elections, start with the words Congress wrote and the cases the courts have decided.