The Fourteenth Amendment and the Appropriateness of Federal Power
The Constitution of the United States established a limited federal government of enumerated powers. The Reconstruction Amendments constitute the first post-Ratification expansion of Congressional power. Each of the Thirteenth, Fourteenth, and Fifteenth Amendments ends with the following sentence: “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” The Supreme Court has interpreted this clause as “a positive grant of legislative power to Congress.” These enforcement powers are constrained only by the requirement that they be “appropriate” and that they “enforce” the substantive provisions of the Amendments.
The Fourteenth Amendment enshrines into law a series of fundamental rights: (a) a guarantee of citizenship to all those born and naturalized in the United States; (b) a prohibition on states passing laws that abridge the privileges and immunities of American citizens; (c) a prohibition on states depriving any person of life, liberty, or property without due process of law; and (d) a prohibition on states denying equal protection of the laws to any person within their jurisdiction. Appended to these rights sits a succinct delegation of enumerated power to Congress, the power to enforce the amendment. The enforcement clause, contained in Section 5 of the Fourteenth Amendment, has vexed the Supreme Court from its ratification to the present era. Could Congress, under its enforcement powers, outlaw discrimination by private individuals? Could Congress limit states’ ability to pass facially neutral laws that substantially burden a person’s exercise of religion? At stake in Section 5 is not only the scope of congressional powers but the monopoly over constitutional interpretation.
The Supreme Court in Boerne v. Flores limited the “enforcement” power in Section 5 to where there exists “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Critics of this interpretation argue that the “congruence and proportionality” standard unduly cabins Congress’s power to determine which measures are “appropriate.” Evidence from the time of ratification points to disagreement over the extent of Congress’s contemplated ability to interpret the scope of its powers under the new amendment. Although there was no political consensus over the scope of Congress’s power under the enforcement clause, the clause’s terms had a pre-existing legal meaning informed by prior legal writings and court decisions. Due to the lack of consensus exhibited during the ratification process on Congress’s contemplated powers, courts should adhere to the antecedent interpretive tradition on judicial review of congressional powers. Since the notion of deference to Congress over its own enforcement authority finds no support in the pre-existing legal tradition, the accurate originalist position is the one found in Boerne: that courts reserved the power of review over Congress’s exercise of its Fourteenth Amendment powers.
The scope of Congressional interpretive authority under Section 5 was hotly contested during the drafting and ratification process, with opponents and proponents presenting diametrically opposing views of the clause’s legal implications. Nonetheless, Reconstruction-era jurisprudential standards limited the scope of Congressional enforcement authority under Section 5. While antebellum Supreme Court precedent granted Congress deference over the legislative means it chose pursuant to its factual determinations, it asserted the power to strike down all unconstitutional statutes. Thus, the
concept of judicial deference to Congressional interpretation of a Constitutional provision is incompatible with Reconstruction-era approaches to judicial review. Further, that the Reconstruction Congress passed not one, but three amendments suggests limitations on each enforcement clause, as far-reaching enforcement powers would have obviated the need for subsequent amendments.
As political currents have turned in favor of expansive civil rights legislation, contemporary scholars look to the Fourteenth Amendment’s enforcement clause to justify non-enumerated Congressional powers. A scholarly consensus suggests that the framers of the Fourteenth Amendment, writing against the backdrop of McCulloch v. Maryland, understood Congress to have deference from the courts when determining the appropriateness of its powers. Such a capacious interpretation of Congress’s Fourteenth Amendment powers, while consonant with the Fourteenth Amendment’s critics, is inconsistent with Reconstruction-era theories of judicial review.
The tension between original public meaning and pre-existing legal meaning reaches beyond the Fourteenth Amendment. McGinnis and Rappaport reconcile original intent and original public meaning by noting that both approaches “require that the Constitution be interpreted using the same interpretive rules,” which are identified “using the methods would have been employed at the time.” Evidence of original public meaning of the Fourteenth Amendment enforcement clause suggests not only ignorance of interpretive rules, an eventuality anticipated by McGinnis and Rappaport, but an understanding of the text divergent from standard interpretive rules. Whether public consensus at the time of ratification can override a pre-existing legal meaning is the subject for another paper. In the absence of consensus in original public meaning, courts should adhere to the pre-existing legal meaning.
