Section 5's Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment before Katzenbach V. Morgan

By Schmidt, Christopher W. | Northwestern University Law Review, January 1, 2018 | Go to article overview

Section 5's Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment before Katzenbach V. Morgan


Schmidt, Christopher W., Northwestern University Law Review


Introduction

Congress's role in protecting the rights contained in the Fourteenth Amendment is a perennially contentious area of constitutional politics.1 Congressional responsibility in this area derives from Section 5 of the Fourteenth Amendment, which empowers Congress to "enforce, by appropriate legislation," the rights guaranteed in the Amendment,2 including the first Section's guarantees of the privileges and immunities of citizenship, due process, and equal protection.3 The crux of the issue is whether, in exercising its enforcement power, Congress shares responsibility with the judiciary for interpreting the meaning of those rights. For at least the last two decades, the position of the Supreme Court on this issue has been clear: the judiciary is the sole arbiter of the definition of constitutional rights. As the Court asserted in City of Boerne v. Flores,4 Congress has the power under Section 5 to pass legislation to protect Fourteenth Amendment rights, so long as these statutory remedies do not expand the court-defined rights. To the extent legislation involves preventative measures, they must be "congruen[t] and proportional[]" to the scope of any record of constitutional violations by the state.5 But to allow Congress shared responsibility in giving meaning to the substance of Fourteenth Amendment rights, the Court held, would undermine the proper functioning of the American constitutional system.6

The Court has used the Boerne approach to justify striking down Congress's attempts to use Section 5 to expand religious free exercise rights,7 to provide federal remedies for victims of gender-motivated violence,8 to allow individuals to sue states for patent infringement,9 and to allow state employees to sue their employers for money damages as a remedy for discrimination based on age10 or disability.11 A narrow reading of the congressional enforcement power also informed the Court's ruling in Shelby County v. Holder,12 which struck down a core provision of the Voting Rights Act of 1965 as beyond Congress's authority to enforce the Fifteenth Amendment.13

Those who are uncomfortable with Boerne"s vision of judicial supremacy on questions of constitutional interpretation can find a starkly different conception of congressional enforcement power in the 1966 Supreme Court opinion in Katzenbach v. Morgan,14 in which Justice William Brennan indicated a willingness to share with Congress the responsibility for defining the constitutional guarantees of the Fourteenth Amendment. But while the Morgan decision has served as a foundation for recent efforts to recognize the value of constitutional responsibility outside the courts15-and the Supreme Court has never overruled it-as a matter of constitutional history, the opinion has generally been considered an outlier in the American constitutional tradition.16

By most accounts, Morgan was a brief, singular moment in constitutional history, marking the fateful intersection of the Warren Court at its ambitious heights and a Congress willing to pass transformative civil rights legislation. Scholars have explained away the decision as another of Justice Brennan's clever constitutional sleights of hand.17 It has become a precedent of predominantly symbolic value-a suggestive testament to lost possibilities for some, a misguided exercise in constitutional impracticalities for others, and often simply an object of puzzlement.18 Particularly after Boerne and subsequent decisions reiterating Boerne"s dismissal ofMorgan,19 Justice Brennan's opinion has become a monument to the Warren Court at its visionary-or reckless-heights.

In this Article I argue that this portrayal of Morgan is misleading and that a more complete history provides a better description of the various roles Section 5 has played in American constitutionalism. My first and primary goal is historical: to explain Justice Brennan's striking interpretation of Section 5 by reconstructing the largely forgotten history of Section 5 in the years between Reconstruction and Morgan. …

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