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Congress's Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted Robert J

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Congress's Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted Robert J Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2005 Congress's Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted Robert J. Kaczorowski Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Courts Commons, Fourteenth Amendment Commons, Judges Commons, Jurisprudence Commons, and the Legal History, Theory and Process Commons Recommended Citation Robert J. Kaczorowski, Congress's Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted , 42 Harv. J. on Legis. 187 (2005) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/224 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. ARTICLE CONGRESS'S POWER TO ENFORCE FOURTEENTH AMENDMENT RIGHTS: LESSONS FROM FEDERAL REMEDIES THE FRAMERS ENACTED ROBERT J. KACZOROWSKI" Professor Robert Kaczorowski arguesfor an expansive originalistinter- pretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld, plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the framers intended to exclude from Congress. The framers also adopted the remedies to redress violations of substantive constitutional rights the Court says the framers intended to re- serve exclusively to the states. The Rehnquist Court's FourteenthAmendment jurisprudence,contradicted by this history, is thus ripe for reevaluation. If, indeed, the Constitution guarantees the right ... the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fun- damental principle, applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contem- plated to exist on the part of the functionaries to whom it is en- trusted .... The remark of Mr. Madison, in the Federalist, [sic] (No. 43,) would seem in such cases to apply with peculiar force. "A right (says he) implies a remedy; and where else would the remedy be deposited, than where it is deposited by the Constitu- tion?" meaning, as the context shows, in the government of the United States.' * Professor of Law, Fordham University School of Law. J.D., New York University, 1982; Ph.D., University of Minnesota, 1971; M.A., DePaul University, 1967; B.Sc., Loyola University (Chicago), 1960. 1 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 615-16 (1842). HarvardJournal on Legislation [Vol. 42 INTRODUCTION A forgotten but profoundly important fact of the nation's constitu- tional history is that the U.S. Congress exercised plenary power to enforce a constitutionally recognized property right as early as 1793.2 Congress enacted civil remedies to redress violations of a slaveholder's constitu- tionally secured property right to recapture his runaway slaves. 3 The stat- ute imposed a civil fine and tort damages on anyone who interfered with the slaveholder's constitutional right.4 In 1842, the U.S. Supreme Court unanimously affirmed Congress's plenary remedial power as a "funda- mental principle" of constitutional law in Prigg v. Pennsylvania.' Justice Story's cited authority for this fundamental principle was McCulloch v. Maryland, an opinion written by perhaps the greatest jurist to serve as Chief Justice, John Marshall.' Chief Justice Marshall, in turn, derived this "fundamental principle" from James Madison, whose Federalist 44 Marshall paraphrased, albeit without attribution.7 Justice Story also relied on Madison in recognizing Congress's plenary remedial powers when he quoted Madison's Federalist43 as authority for the "fundamental princi- ple" that rights secured by the Constitution delegate to Congress plenary power to enforce them.' Chief Justice Roger B. Taney concurred fully in these views.9 According to the Supreme Court today, however, Congress's power to remedy the violation of constitutional rights is anything but plenary. In City of Boerne v. Flores,"° the Rehnquist Court struck down the Religious Freedom Restoration Act" (RFRA) and held that Congress's power to enforce the rights secured by the Fourteenth Amendment is limited to remedying state violations. 2 According to the Court, the Fourteenth Amendment does not delegate to Congress the power to define the rights the Fourteenth Amendment secures, to enforce the rights themselves, or even to determine what constitutes a state violation of Fourteenth Amend- ment rights. 3 Subsequently, in a later case, the Rehnquist Court struck down 2 See Act of Feb. 12, 1793, ch. 7, §§ 3-4, 1 Stat. 302-05 (repealed 1864). 3 See id. I See id. 5 Prigg, 41 U.S. (16 Pet.) at 615. 6 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819). 'THE FEDERALIST No. 44, at 285 (James Madison) (Clinton Rossiter ed., 1961). Ex- plaining the national government's implied powers, Madison wrote: "No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included." Id. at 285. 8 See THE FEDERALIST No. 43 (James Madison) (Clinton Rossiter ed., 1961). 9 See Prigg, 41 U.S. (16 Pet.) at 626 (Taney, C.J., concurring in part and dissenting in part). 10521 U.S. 507 (1997). 42 U.S.C. § 2000bb (1994). '2 Boerne, 521 U.S. at 519. 13See id. at 519-20. 2005] Congress's Power To Enforce Fourteenth Amendment Rights 189 a provision of the Violence Against Women Act 4 (VAWA) that imposed civil liability on anyone who committed an act of physical violence against a woman because of gender animus.' 5 Citing Boerne, the Court reasoned that Congress's remedial powers under the Fourteenth Amendment, lim- ited as they are to correcting state violations of constitutional rights, do not authorize Congress to create civil remedies and impose civil liability against a private individual who violates another individual's constitutional rights. 16 The Rehnquist Court based its recent interpretations of Congress's Fourteenth Amendment remedial powers on its conception of the intent of the Amendment's framers. In striking down the RFRA in Boerne, the Court, speaking through Justice Anthony Kennedy, held that the framers of the Fourteenth Amendment intentionally limited Congress's powers under the Amendment to remedying state violations of the rights it secured. 7 Ac- cording to the Court, the framers intentionally refused to give Congress ple- nary remedial powers, such as the authority to define Fourteenth Amendment rights, to determine what constitutes a violation of these rights, and to re- dress violations of Fourteenth Amendment rights committed by private individuals. 8 The framers refused to give such plenary power to Congress, Justice Kennedy opined, because to do so would have given Congress "too much legislative power at the expense of the existing constitutional struc- ture .... [and also would have given] Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the fed- eral design central to the Constitution." 9 It is clear that the Rehnquist Court has forgotten the Madisonian first principles of American constitutionalism, as articulated by Chief Justices Marshall and Taney and Justice Story, which recognized plenary congres- sional power to enforce constitutional rights and to remedy their viola- tion." The Rehnquist Court also seems unaware of the congressional and 1442 U.S.C. § 13981 (1994). '16 See United States v. Morrison, 529 U.S. 598 (2000). 1 1d - 17See Boerne, 521 U.S. at 522. 18See id. 19 1d. at 520-21. 20 Contrast Chief Justice Rehnquist's statement of Madisonian first principles in United States v. Lopez, in which he prefaced his analysis of Congress's enumerated powers under the Commerce Clause with a statement of "first principles" of constitutional federalism and separation of powers: We start with first principles. The Constitution creates a Federal Government of enumerated powers. As James Madison wrote: The powers delegated by the pro- posed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. This constitu- tionally mandated division of authority was adopted by the Framers to ensure pro- tection of our fundamental liberties. Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumu- lation of excessive power in any one branch, a healthy balance of power between HarvardJournal on Legislation [Vol. 42 judicial enforcement of slaveholders'
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