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Congressional Enforcement of the Rights of Citizenship

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Congressional Enforcement of the Rights of Citizenship Zietlow 7.0 10/6/2008 5:39 PM CONGRESSIONAL ENFORCEMENT OF THE RIGHTS OF CITIZENSHIP Rebecca E. Zietlow* TABLE OF CONTENTS I. Introduction ......................................................................................... 1015 II. Reconstruction and the Rights of Citizenship ................................. 1019 A. The Roots of the Reconstruction Model of Citizenship Rights ............................................................................................ 1020 B. Citizenship and the Thirteenth Amendment ............................. 1024 C. The Fourteenth Amendment and Congressional Power .......... 1026 D. The Reconstruction Theory of Citizenship ................................ 1029 E. Citizenship and Exclusion in the Reconstruction Congress ..... 1033 III. Twentieth Century Enforcement of Citizenship Rights ................. 1036 A. The New Deal ............................................................................... 1036 B. The Second Reconstruction ......................................................... 1038 C. Other Legislation .......................................................................... 1040 IV. The Danger of Exclusion ................................................................... 1043 V. Conclusion ........................................................................................... 1045 I. INTRODUCTION The twentieth century was marked by an expansion of equality rights by Congress and the federal courts. While the federal courts relied primarily on the Equal Protection Clause as a source of those rights, members of Congress relied on other sources as well, including the Thirteenth Amendment and the Commerce Clause.1 However, at the end * Charles W. Fornoff Professor of Law and Values, University of Toledo College of Law. Thanks to W. David Koeninger and Michael Vorenbreg for their comments on earlier drafts. Thanks to Brianna White for her excellent research assistance. Thanks to Mark Kende and the Drake University Law School for inviting me to participate in this fine symposium, and to the editors of the Drake Law Review for all of their hard work and hospitality. 1. Congress relied on the Commerce Clause to address private 1015 Zietlow 7.0 10/6/2008 5:39 PM 1016 Drake Law Review [Vol. 56 of the twentieth century, the Supreme Court greatly limited Congress’s autonomy to use its power to enforce the Equal Protection Clause and the Commerce Clause as a means of enforcing equality rights.2 Therefore, it is necessary for members of Congress to consider a new source of congressional power to enforce those rights. This paper considers an alternative to the Equal Protection-based model of equality—congressional enforcement of the rights of citizenship pursuant to the Thirteenth Amendment, the Citizenship Clause, and the Privileges or Immunities Clause of the Fourteenth Amendment. Reconsidering equality rights as “citizenship rights” provides an opportunity to transcend the equality- difference dilemma that requires comparison between categories of people, rather than a focus on the empowerment of outsiders.3 Members of Congress have often invoked the concept of citizenship when enacting legislation that defines and protects “rights of belonging”— those rights that promote an inclusive vision of who belongs to the national community of the United States and facilitate equal membership in that community.4 That tradition dates back to the Reconstruction Era, when discrimination because the Court had restricted Congress’s power to apply the Equal Protection Clause to state action in the Civil Rights Cases. See Rebecca E. Zietlow, To Secure These Rights: Congress, Courts, and the 1964 Civil Rights Act, 57 RUTGERS L. REV. 945, 976–79 (2005). 2. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 520 (1997) (restricting Congress’s power to enact legislation enforcing the Equal Protection Clause with the “congruence and proportionality” test); see also Bd. of Trustees v. Garrett, 531 U.S. 356, 365 (2001) (applying the Boerne test to strike down legislation enforcing the right to be free from disability discrimination against state employers); United States v. Morrison, 529 U.S. 598, 613–14 (2000) (limiting Congress’s power to enact civil rights legislation under the Commerce Clause to protecting “economic” rights); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 204–05 (1995) (striking down a federal affirmative action program as violating the Due Process Clause). 3. See, e.g., CATHARINE MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 32–45 (1987) (describing this dynamic in the context of sex discrimination law). 4. See generally REBECCA E. ZIETLOW, ENFORCING EQUALITY: CONGRESS, THE CONSTITUTION, AND THE PROTECTION OF INDIVIDUAL RIGHTS (2006). Rights of belonging are rooted in equality, but they promise more than the procedural notion of equal treatment. Instead, rights of belonging are substantive—they are intended to create the conditions that enable outsiders to fully participate in the national community. For example, the Civil Rights Act of 1964 facilitates the belonging of people of color in our society because it removes barriers to that belonging created by discrimination. Legislation creating economic benefits, such as the Social Security Act of 1935, also facilitates participation because it provides the material conditions for the poorest in our society to survive without a daily struggle, and it promotes belonging by establishing a connection between the state and the individual. Legislation creating Zietlow 7.0 10/6/2008 5:39 PM 2008] Congressional Enforcement of the Rights of Citizenship 1017 members of Congress expanded the national polity to include freed slaves as citizens and gave themselves the power to protect the individual rights of people within Congress’s jurisdiction. Making newly freed slaves “citizens” had an important symbolic value for members of the Reconstruction Congress. Members of that Congress believed that being a United States citizen entitled one to the enjoyment of the fundamental human rights that slaves had previously been denied.5 During the other historic periods marked by the greatest expansion of rights of belonging, the New Deal and the Second Reconstruction of the 1960s, members of Congress hearkened back to the broad vision of citizenship rights held by their Reconstruction Era predecessors. When members of Congress invoke citizenship as a source of rights of belonging, they rely on an inclusive concept of citizenship based on ties between the community and its members. Under this inclusive vision of citizenship rights, members of the national polity share mutual obligations and enjoy equal rights.6 This inclusive vision of citizenship is an appealing model for members of Congress who wish to expand rights of belonging— people are entitled to equality rights solely because they are members of the national community. Statutory rights based on citizenship send a powerful message of inclusion. When members of Congress enact legislation creating rights of belonging based on citizenship, they act as representatives of that community by expanding it to outsiders.7 Citizenship is also an especially appealing model for those of us who value congressional enforcement of rights of belonging. There are several important reasons to focus on congressional protection of those rights. Historically, Congress has played a leading role in defining and protecting the right to organize and bargain collectively facilitates both the economic and political participation of working people in our society. All of this legislation creates rights of belonging because it invites outsiders to join the national community and declares the national community’s commitment to those outsiders. Id. at 6–8, 160–68. 5. See AKHIL AMAR, THE BILL OF RIGHTS: CREATION AND CONSTRUCTION 195–97 (1998); Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 CONST. COMMENT. 235, 236 (1984); Rebecca E. Zietlow, Belonging, Protection and Equality: The Neglected Citizenship Clause and the Limits of Federalism, 62 U. PITT. L. REV. 281, 310–11 (2000). 6. See MICHAEL J. SANDEL, DEMOCRACY’S DISCONTENT 4 (1996) (emphasizing the importance of self-government and ties to community). 7. See ZIETLOW, supra note 4, at 11 (“Legislatures are the more natural enforcers of [rights of belonging] because legislatures represent the will of the community.”). Zietlow 7.0 10/6/2008 5:39 PM 1018 Drake Law Review [Vol. 56 those rights.8 Congressional protection of rights also enjoys the advantage of the accountability and transparency of the legislative process, which promotes the enforcement of those rights.9 Nevertheless, the Supreme Court recently has cut back on Congress’s power to protect rights of belonging. In City of Boerne v. Flores, the Court restricted Congress’s power to enforce the Fourteenth Amendment Equal Protection Clause.10 In Adarand Constructors, Inc. v. Pena, the Court struck down affirmative action measures enacted by Congress to further what Congress considered to be the cause of racial equality.11 In United States v. Morrison, the Court held that Congress could not use the Commerce Clause to enact civil rights legislation protecting non-economic rights.12 All of these rulings present a challenge for those members of Congress who support innovative measures to fight inequality in our society. In contrast, in the realm of citizenship rights the Court has largely deferred to Congress. The Court has recognized a virtually plenary
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