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Section 5'S Forgotten Years: Congressional Power To View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Northwestern University Illinois, School of Law: Scholarly Commons Copyright 2018 by Christopher W. Schmidt Printed in U.S.A. Vol. 113, No. 1 SECTION 5’S FORGOTTEN YEARS: CONGRESSIONAL POWER TO ENFORCE THE FOURTEENTH AMENDMENT BEFORE KATZENBACH V. MORGAN Christopher W. Schmidt ABSTRACT—Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan. Justice Brennan’s 1966 opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation,” the rights enumerated in that Amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in City of Boerne v. Flores, the Supreme Court rejected the heart of the Morgan decision as subversive of the American constitutional order. Today, Morgan stands largely as an aberration of American constitutional law. This Article attempts to place Morgan back into the stream of historical development from which it arose. When properly situated in its historical context, Justice Brennan’s opinion appears less puzzling and less aberrational. Morgan in fact built upon several decades of debates in the courts, in Congress, and among legal commentators over the scope of congressional enforcement power under Section 5—debates that largely have been missing from Section 5 scholarship. In reconstructing the history from this period, this Article also identifies the political and legal conditions that supported claims of shared constitutional interpretive responsibility in the past and considers whether these conditions might again be met in the future. AUTHOR—Professor of Law, Associate Dean for Faculty Development, and Co-Director, Institute on the Supreme Court of the United States (ISCOTUS), Chicago-Kent College of Law; Faculty Fellow, American Bar Foundation; Editor, Law & Social Inquiry. For helpful comments and critiques on this Article, I thank William Araiza, Andrew Coan, Katie Eyer, Michael Klarman, Jason Mazzone, Cristina Rodriguez, Mark Rosen, David Schwartz, Eric Segall, Reva Siegel, Carolyn Shapiro, and participants in the 47 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W National Conference of Constitutional Law Scholars and the University of Illinois College of Law Constitutional Law Colloquium. INTRODUCTION .............................................................................................................. 48 I. THE FRAMING OF THE FOURTEENTH AMENDMENT RECONSIDERED ......................... 53 II. DEBATING THE CONGRESSIONAL ENFORCEMENT POWER ........................................ 57 A. Anti-Lynching Legislation ............................................................................. 58 B. Anti-Poll Tax Legislation .............................................................................. 60 C. School Desegregation Legislation (Before Brown) ...................................... 64 D. Public Accommodations Legislation ............................................................. 73 III. MORGAN AND THE OCTOBER TERM 1965 ................................................................ 82 A. South Carolina v. Katzenbach....................................................................... 83 B. Harper v. Virginia Board of Elections .......................................................... 84 C. United States v. Guest ................................................................................... 87 D. Katzenbach v. Morgan .................................................................................. 91 IV. THE PAST, PRESENT, AND FUTURE OF SECTION 5 .................................................... 99 A. The Boerne Model......................................................................................... 99 B. Lessons from Section 5’s Forgotten Years .................................................. 104 CONCLUSION ............................................................................................................... 108 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 1 See, e.g., OFFICE OF LEGAL POLICY, U.S. DEP’T OF JUSTICE, GUIDELINES ON CONSTITUTIONAL LITIGATION 56–59 (1988), http://www.ialsnet.org/documents/Patersonmaterials2.pdf [https://perma.cc/ 8FLK-7EMR]; Pamela S. Karlan, The Supreme Court, 2011 Term, Foreword: Democracy and Disdain, 126 HARV. L. REV. 1, 55–57 (2012); Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, passim (1997). 2 U.S. CONST. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”). 3 Id. § 1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”). 48 113:47 (2018) Section 5’s Forgotten Years 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 4 521 U.S. 507 (1997). 5 Id. at 520. 6 See, e.g., id. at 529 (“If Congress could define its own powers by altering the Fourteenth Amendment’s meaning, no longer would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’” (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))). 7 Id. 8 United States v. Morrison, 529 U.S. 598, 627 (2000) (Violence Against Women Act not authorized under Section 5). 9 Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 630 (1999) (Patent Remedy Act not authorized under Section 5). 10 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67 (2000) (Age Discrimination in Employment Act not authorized under Section 5). 11 Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Title I of the Americans with Disabilities Act of 1990 not authorized under Section 5); see also Coleman v. Court of Appeals, 566 U.S. 30, 43–44 (2012) (self-care provision of the Family and Medical Leave Act not authorized under Section 5). Using the Boerne standard, the Court has also upheld several exercises of Congress’s Section 5 power. See Tennessee v. Lane, 541 U.S. 509, 533–34 (2004) (Title II of the Americans with Disabilities Act, as applied to access to courts); Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 735 (2003) (family leave provision of the Family and Medical Leave Act). 12 570 U.S. 529, 553–57 (2013). 13 U.S. CONST. amend. XV, § 2 (“The Congress shall have power to enforce this article by appropriate legislation.”). 14 384 U.S. 641 (1966). 49 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W 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
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