Which court case or legal action brought the fourteenth and fifteenth amendments back to life?

Section Five of the Fourteenth Amendment should be interpreted broadly to authorize Congress to advance the protections of due process, equal protection, and the privileges and immunities of citizenship. The drafters of the Fourteenth Amendment intentionally chose not to leave the enforcement of its provisions solely to the courts, but instead gave Congress authority to enact laws to enforce its requirements. 

The history of the Fourteenth Amendment shows that its framers intended Congress to have expansive power under this provision. In the first case to interpret this authority after the ratification of the Fourteenth Amendment, the Court spoke of Section Five giving to Congress the power to “secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion” and that any act “if not prohibited, is brought within the domain of congressional power.” Ex parte Virginia (1879).

According Congress such power is a desirable and necessary way of fulfilling the crucial goals of the Fourteenth Amendment: protecting people from infringement of their rights or a denial of equality.  The Constitution is the floor, not the ceiling, of individual rights. Congress should have the ability to expand liberty and enhance equality, and Section Five should be interpreted to allow this.

 Unfortunately, the Supreme Court repeatedly has adopted unduly narrow interpretations of Congress’s power under Section Five. First, the Court wrongly held that Section Five does not empower Congress to regulate private conduct, but only state and local government actions. This was initially the holding in The Civil Rights Cases (1882), and reaffirmed in United States v. Morrison (2000), which held that Section Five did not give Congress power to pass a law prohibiting private gender-motivated violence. The Court reasoned that because Section One of the Fourteenth Amendment, which prohibits states from denying citizens privileges and immunities of citizenship, due process, or equal protection of the laws, applies only to state and local governments, Congress’s power to enforce the Fourteenth Amendment is similarly limited.

But that conclusion does not follow. As Justice Stephen Breyer expressed in his dissent in Morrison, “But why can Congress not provide a remedy against private actors? Those private actors, of course, did not themselves violate the Constitution. But this Court has held that Congress at least sometimes can enact remedial ‘[l]egislation ... [that] prohibits conduct which is not itself unconstitutional.’” Moreover, violations of rights by private actors occur precisely because state and local governments have failed to prevent them. Congress, in preventing discrimination or violation of rights by private entities, is remedying the failures of state and local governments. This is exactly what the power under Section Five exists to accomplish.

Another Perspective

This essay is part of a discussion about the Fourteenth Amendment's Enforcement Clause with Earl M. Maltz, Distinguished Professor, Rutgers School of Law–Camden. Read the full discussion here.

Second, the Court has unduly limited Congress’s power to protect liberty and advance equality under Section Five of the Fourteenth Amendment. In City of Boerne v. Flores (1997), the Court ruled that Section Five does not empower Congress to create new rights or expand the scope of rights; rather Congress is limited to laws that prevent or remedy violations of rights recognized by the Supreme Court, and these must be narrowly tailored — “proportionate” and “congruent” — to the constitutional violation. This significantly and unjustifiably limits congressional power. Applying this test, courts have declared unconstitutional federal laws expanding protection for religious freedom, making state governments liable for age and disability discrimination in employment, and allowing state governments to be sued for patent infringement.

The better view of Congress’s Section Five power was articulated in Katzenbach v. Morgan (1966). The Court concluded that Congress has the power to expand, but not limit the rights that would otherwise be protected by section one of the Fourteenth Amendment. This approach accorded to Congress the power to expand the protections of liberty and equality, as well as to prevent and remedy violations of rights recognized by the courts.

Third, the Court has wrongly restricted the Congress’s authority to impose remedies on states with a history of race discrimination in voting. In Shelby County, Alabama v. Holder (2013), the Court held that a section of the Voting Rights Act of 1965 that subjected certain states and counties to heightened antidiscrimination measures is unconstitutional, as is exceeds the scope of Congress’s powers and is an impermissible intrusion on state sovereignty.

The Voting Rights Act of 1965 is a landmark civil rights law. The law prohibits state and local governments from having election practices which discriminate, or have a discriminatory impact, against minority voters.  It authorizes lawsuits to enforce this prohibition. Congress, though, was concerned that this was not sufficient. Litigation is expensive and time consuming. Also, Congress was aware that many jurisdictions, especially in the South, were repeatedly changing their election practices to discriminate against minority voters.

Congress, therefore, included a preventative measure: Another section of the Act says that jurisdictions (states and counties) with a history of race discrimination in voting must get “preclearance” from the Attorney General or a three-judge court before significantly changing their election systems (for example, adopting a law that restricts early voting). The Act includes a formula defining which jurisdictions must get preclearance. 

Congress repeatedly reauthorized the preclearance requirement, including for five years in 1970, for seven years in 1975, and for 25 years in 1982. In 2006, Congress voted overwhelmingly – 98-0 in the Senate and 390-33 in the House -- to extend it for another 25 years and President George W. Bush signed this into law.

In Shelby County, Alabama v. Holder, the Supreme Court, in a 5-4 decision, held that the formula in the Voting Rights Act defining which states and counties have a history of discrimination in voting, and are therefore required to get approval before changing their election systems, is unconstitutional. This effectively nullified preclearance requirements under the Act. But it is unclear what constitutional provision or principle the Court found was violated by the Voting Rights Act’s formula for determining which states and counties have a history of racial discrimination, and are therefore subject to heightened antidiscrimination measures. The closest the Court came to indicating this was by saying that Congress violated the principle of equal state sovereignty, that it must treat all states alike. Nowhere, though, does the Constitution say that, and the framers of the Fourteenth Amendment obviously did not believe this since they also passed the Reconstruction Act and imposed military rule over Southern states.

This was the first time since the nineteenth century that a federal civil rights law dealing with race was declared unconstitutional. States immediately implemented voting laws that had been blocked by the Attorney General as discriminatory.

In all of these ways, the Supreme Court has improperly limited Congress and denied it the broad authority it should possess under Section Five of the Fourteenth Amendment.

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