Fourteenth Amendment — Citizenship, Incorporation & Section 5 Power

The Fourteenth Amendment (ratified 1868) is the most litigated and arguably most important amendment to the Constitution. Its five sections transformed American constitutional law. Section 1 contains four clauses that have reshaped the relationship between individuals, states, and the federal government: the Citizenship Clause ("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"), the Privileges or Immunities Clause (largely dormant since the Slaughter-House Cases, 1873 — see Privileges & Immunities), the Due Process Clause ("nor shall any State deprive any person of life, liberty, or property, without due process of law" — see Due Process), and the Equal Protection Clause ("nor deny to any person within its jurisdiction the equal protection of the laws" — see Equal Protection). The Due Process and Equal Protection Clauses have their own Polipedia pages — this page focuses on two critical aspects not covered elsewhere: the Citizenship Clause (establishing birthright citizenship and providing the basis for jus soli — citizenship by birth on U.S. soil) and the incorporation doctrine (the process by which the Bill of Rights — originally limiting only the federal government — was applied to state and local governments through the Fourteenth Amendment's Due Process Clause). Section 5 grants Congress the power to enforce the Amendment "by appropriate legislation" — the constitutional basis for landmark civil rights statutes. Violations of Fourteenth Amendment rights are enforced primarily through Section 1983 civil rights lawsuits.

Current Law (2026)

Parameter	Value
Constitutional provision	Fourteenth Amendment (ratified 1868)
Citizenship Clause	Birthright citizenship for all persons born in the U.S. and subject to its jurisdiction
Incorporation	Most Bill of Rights protections apply to states through the 14th Amendment Due Process Clause
Not yet incorporated	Third Amendment (quartering, assumed); grand jury indictment requirement (5th Amend.); civil jury trial right (7th Amend.); excessive fines (incorporated 2019)
Section 5 power	Congress may enforce the 14th Amendment through "appropriate legislation" — but limited by City of Boerne v. Flores (1997)
Key cases	United States v. Wong Kim Ark (1898), Gitlow v. New York (1925), McDonald v. City of Chicago (2010), City of Boerne v. Flores (1997), Timbs v. Indiana (2019)
Section 3 (disqualification)	Bars from office persons who took an oath to support the Constitution and then "engaged in insurrection"

Legal Authority

U.S. Constitution, Amend. XIV, § 1 — Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, Equal Protection Clause
U.S. Constitution, Amend. XIV, § 5 — "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article"
United States v. Wong Kim Ark (1898) — The Citizenship Clause guarantees birthright citizenship to children born in the U.S. to non-citizen parents (with narrow exceptions)
Gitlow v. New York (1925) — Began selective incorporation of the Bill of Rights against the states through the Due Process Clause
City of Boerne v. Flores (1997) — Section 5 power is limited to "remedial" legislation that is "congruent and proportional" to documented constitutional violations
McDonald v. City of Chicago (2010) — Incorporated the Second Amendment against the states

How It Works

The Citizenship Clause overruled Dred Scott v. Sandford (1857) — which had held that Black Americans could never be U.S. citizens — by establishing that all persons born in the United States and "subject to the jurisdiction thereof" are citizens. In United States v. Wong Kim Ark (1898), the Supreme Court confirmed this includes children born to non-citizen parents; the narrow "subject to the jurisdiction thereof" exception covers only children of foreign diplomats and enemy forces occupying U.S. territory. Birthright citizenship has been periodically debated but never successfully restricted through legislation or executive action; federal courts enjoined President Trump's January 2025 executive order attempting to limit it, with the Supreme Court taking up the case for argument in April 2026. Through a parallel doctrine, the Fourteenth Amendment transformed the Bill of Rights from a check solely on federal power into one binding state and local governments as well. Through selective incorporation — applied via the Due Process Clause's guarantee of "liberty" — the Supreme Court has held that most Bill of Rights protections are "fundamental" rights that states must respect, beginning with free speech (Gitlow v. New York, 1925) and continuing through the Second Amendment (McDonald v. City of Chicago, 2010) and the Excessive Fines Clause (Timbs v. Indiana, 2019). Today, nearly every Bill of Rights provision is incorporated; the few exceptions include the Fifth Amendment's grand jury indictment requirement and the Seventh Amendment's civil jury trial right.

Section 5 of the Fourteenth Amendment grants Congress the power to enforce the Amendment "by appropriate legislation" — the constitutional basis for the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Americans with Disabilities Act (Title II), and other landmark civil rights statutes. But City of Boerne v. Flores (1997) cabined this power: Section 5 legislation must be "congruent and proportional" to documented patterns of constitutional violations. Congress can remedy and prevent constitutional violations, but it cannot redefine what the Constitution means — the Religious Freedom Restoration Act was struck down as applied to states because it imposed a broader religious liberty standard than the Free Exercise Clause itself requires. Section 3 — the disqualification clause barring from office anyone who took an oath to support the Constitution and then "engaged in insurrection or rebellion" — was invoked following January 6, 2021. In Trump v. Anderson (2024), the Supreme Court held that Section 3 is not self-executing as applied to federal officeholders: Congress must enact implementing legislation to enforce it against candidates for federal office, and states cannot unilaterally disqualify federal candidates.

How It Affects You

If you were born in the U.S. to non-citizen parents and your citizenship status is being questioned: The Citizenship Clause of the Fourteenth Amendment makes you a U.S. citizen automatically, at birth — regardless of your parents' immigration status. This has been controlling constitutional law since United States v. Wong Kim Ark (1898), which specifically addressed the children of Chinese immigrants (then ineligible for naturalization under the Chinese Exclusion Act) and held that birth on U.S. soil confers citizenship.

In January 2025, President Trump signed an executive order purporting to restrict birthright citizenship to children of lawful permanent residents and U.S. citizens. Federal courts immediately enjoined the order — multiple district courts and circuit courts held that the executive order directly contradicts Wong Kim Ark and the text of the Fourteenth Amendment. The Supreme Court agreed to hear the case and scheduled oral argument for April 2026; the injunctions blocking the order remain in effect as of that date. If you were born in the United States, you are a U.S. citizen under current controlling law. No executive order has or can retroactively alter this.

Practical steps if you need to document your citizenship: (1) A U.S. birth certificate is the primary proof of birth on U.S. soil — if you don't have one, contact the vital records office for the state where you were born. (2) A U.S. passport is the definitive proof of U.S. citizenship; apply at travel.state.gov using your birth certificate. (3) If your parents were undocumented and you were born in the U.S., you are still a U.S. citizen — the Fourteenth Amendment does not contain an exception for this situation. (4) If you're being denied a government benefit, employment, or document on the basis that your birthright citizenship is disputed, contact an immigration attorney or a civil rights organization like the ACLU Immigrants' Rights Project (aclu.org/immigrants-rights) or National Immigration Law Center (nilc.org) — both actively litigate birthright citizenship cases.

If you're a non-citizen who lives in or interacts with the United States: The Fourteenth Amendment protects "persons", not just citizens. The Equal Protection and Due Process Clauses of Section 1 apply to all persons within a state's jurisdiction — including undocumented immigrants, lawful permanent residents, visa holders, and refugees. Supreme Court cases have repeatedly confirmed that non-citizens have constitutional rights against arbitrary state action: Plyer v. Doe (1982, states cannot deny public education to undocumented children); Mathews v. Eldridge (1976, procedural due process applies to government benefit terminations affecting non-citizens); and many others. The practical meaning: state governments cannot deny you equal protection of the laws, deprive you of liberty or property without due process, or subject you to racially discriminatory treatment, regardless of your citizenship or immigration status.

Key distinction: immigration enforcement authority belongs to the federal government, not states. State laws that attempt to impose their own immigration enforcement requirements or create state crimes for immigration violations may be preempted by federal law. For civil rights violations by state actors (police, school officials, state agencies), claims can be filed under 42 U.S.C. § 1983 in federal court — see the Section 1983 page for filing procedures and statute of limitations.

If you're seeking to enforce Fourteenth Amendment rights against state or local government: The practical enforcement mechanism is 42 U.S.C. § 1983 — the civil rights statute that allows individuals to sue state and local officials for violations of constitutional rights. Section 1983 requires: (1) action under color of state law — the defendant must be a state actor (police officer, public school official, state agency employee, government contractor in limited circumstances); (2) violation of a constitutional or federal statutory right; and (3) causation. Section 1983 allows recovery of compensatory damages, injunctive relief, and attorney fees. The Section 1983 page covers qualified immunity (the defense that limits when officials can be sued) and procedural requirements in detail.

For systemic or pattern-of-practice violations — where a city or county's policies or customs cause constitutional violations — courts can order institutional reform (changes to policies, training, oversight) in addition to damages. The Department of Justice can also investigate and bring pattern-or-practice cases against law enforcement agencies under 34 U.S.C. § 12601. If you've experienced a civil rights violation by state or local officials, contact the DOJ Civil Rights Division at justice.gov/crt or the state ACLU affiliate.

If you're a civil rights organization or Section 5 litigator: The City of Boerne "congruent and proportional" test creates real constraints on using Section 5 to legislate beyond what the Court has identified as a constitutional violation. For legislation to survive Section 5 scrutiny, you need: (1) a documented pattern of actual constitutional violations by state actors in the area being regulated; (2) a legislative record (congressional findings, hearings, testimony) establishing that the legislative remedy is proportionate to the documented violations; and (3) a statute that remediates or prevents the violations rather than redefining the constitutional standard. Congress's strongest Section 5 record has been in voting rights (where the VRA's coverage formula was sustained based on extensive evidence of racial discrimination in voting) and the ADA's application to state governments.

State Variations

The Fourteenth Amendment applies to all states:

Incorporation means states must comply with nearly all Bill of Rights protections
States may provide greater protections than the federal Constitution requires — but not less
State constitutions often have their own due process, equal protection, and citizenship provisions that may exceed federal protections
Section 5 legislation (Civil Rights Act, VRA, ADA) applies to all state and local governments

Implementing Regulations

This is a constitutional provision with no implementing regulations in the Code of Federal Regulations. Key judicial doctrine includes:

United States v. Wong Kim Ark (1898) — The Citizenship Clause guarantees birthright citizenship to children born on U.S. soil to non-citizen parents; the "subject to the jurisdiction thereof" language does not exclude children of lawful immigrants
Slaughter-House Cases (1873) — Narrowly interpreted the Privileges or Immunities Clause to cover only rights of national citizenship, leaving most civil rights protections under state law and effectively gutting that clause; the decision has never been overruled and is the primary reason the Due Process Clause carries the weight of incorporation
Lochner v. New York (1905) — Invoked substantive due process under the Fourteenth Amendment to strike down a state maximum-hours law; the "Lochner era" of the Court using the Due Process Clause to protect economic liberties ended in the 1930s but the doctrine of substantive due process has continued in other contexts
Gitlow v. New York (1925) — Began selective incorporation of the Bill of Rights against the states through the Fourteenth Amendment's Due Process Clause; held that freedom of speech is among the fundamental liberties protected against state infringement
McDonald v. City of Chicago (2010) — Incorporated the Second Amendment right to keep and bear arms against state and local governments through the Due Process Clause, extending District of Columbia v. Heller (2008) to state action
Timbs v. Indiana (2019) — Incorporated the Eighth Amendment's Excessive Fines Clause against the states, the most recent Bill of Rights provision to be formally incorporated

Pending Legislation

No standalone constitutional amendment legislation pending in the 119th Congress. See Equal Protection, Voting Rights, and Due Process for legislative activity touching Fourteenth Amendment doctrine.

Recent Developments

Trump v. Anderson (2024) was the most significant Section 3 case since Reconstruction — the Court held that states cannot enforce Section 3 against federal candidates without congressional implementing legislation. The Citizenship Clause has faced renewed political challenges — executive orders and legislative proposals have attempted to redefine or restrict birthright citizenship, but Wong Kim Ark remains controlling precedent. The incorporation doctrine continued expanding with Timbs v. Indiana (2019, Excessive Fines Clause). The interaction between Section 5's enforcement power and the Court's narrowing of equal protection and due process standards continues to define the boundary between congressional and judicial power over civil rights.

In February 2026, legal analysis on SCOTUSblog examined the Justice Department's historical arguments challenging birthright citizenship under the Fourteenth Amendment's Citizenship Clause, noting gaps in the DOJ's reading of the "subject to the jurisdiction thereof" language and the precedent set by United States v. Wong Kim Ark (1898).
The Supreme Court announced in February 2026 that it would hear oral arguments on April 1 in the challenge to President Trump's executive order seeking to end birthright citizenship, setting up a landmark constitutional confrontation over the Fourteenth Amendment's Citizenship Clause.