Interactive Constitution Essay: Fourteenth Amendment’s Enforcement Clause

Section Five of the Fourteenth Amendment vests Congress with the authority to adopt “appropriate” legislation to enforce the other parts of the Amendment—most notably, the provisions of Section One. As Senator Jacob M. Howard explained, Section Five “enables Congress, in case the State shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.”

By adding to the authority of Congress, Section Five changed the balance of power between the state and federal governments that is the hallmark of the federal system. The scope of the power conferred by this provision has been a matter of considerable controversy. Initially, the Supreme Court gave a broad interpretation to Congress’s authority under Section Five. In Ex parte Virginia (1879), the Court declared:

However, subsequent decisions have at times construed the Section Five power more narrowly. These decisions have focused on two primary issues. First, who may Congress regulate? Second, what may Congress do? The debate over these issues that began in the late-nineteenth century continues to the present day.

First, who may Congress regulate? In The Civil Rights Cases (1882), the Supreme Court struck down the provisions of the Civil Rights Act of 1875 that outlawed racial discrimination in a variety of private transactions, noting that Section One by its terms limits only the power of the states, and that therefore Section Five should not be read to provide Congress with the authority to regulate the activities of purely private parties. The Court declared: “It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the actions of State officers.”

By contrast, in United States v. Guest (1966), six Justices, although not in a single opinion, concluded that Section Five empowered Congress to outlaw private discrimination in some circumstances. However, in United States v. Morrison (2000), the Supreme Court held that Congress did not have the power under Section Five to enact a law called the Violence Against Women Act, which allowed victims of gender-motivated violence to sue the perpetrator in federal court. This decision expressly reaffirmed the Civil Rights Cases and disavowed the opinions to the contrary in Guest. The Court declared that it was reaffirming “the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action.”

Second, what may Congress do? More specifically, does Section Five allow Congress to prohibit actions by the state governments that would not be outlawed by Section One itself? The Supreme Court has answered this question differently over time. At one point, the Justices expressed the view that Congress can use its power under Section Five to expand rights, as well as to provide remedies for violations. Thus, in Katzenbach v. Morgan (1966), the Court held that Congress could rely on its Section Five authority to outlaw the use of literacy tests as a qualification for voters who had been educated in Puerto Rico, notwithstanding the fact that only seven years earlier the Court had found that the use of literacy tests did not violate the Fourteenth Amendment. The majority opinion 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.

In subsequent cases, however, the Court has held that Congress cannot use its power under Section Five to expand rights, but rather only to provide remedies for rights recognized by the courts. In Oregon v. Mitchell (1970), a deeply-divided Court held that Congress could not constitutionally require the states to allow eighteen-year-old citizens to vote in state and local elections.

Most importantly, in City of Boerne v. Flores (1997), the Court held that Section Five does not empower Congress to create new rights or expand the scope of rights, and that even laws designed to prevent or remedy violations of rights recognized by the Supreme Court must be narrowly tailored—“proportionate” and “congruent”—to the scope of constitutional violations. City of Boerne involved the federal Religious Freedom Restoration Act (RFRA), a law adopted in 1993 in response to a Supreme Court decision that had narrowed the protections of the Free Exercise Clause of the First Amendment. In essence, RFRA subjected the actions of state and local governments to the same level of scrutiny that had been applied in earlier Supreme Court decisions interpreting the scope of the Clause. However, the City of Boerne majority concluded that this part of RFRA was unconstitutional because Section Five did not authorize Congress to either create new rights or expand the scope of the rights recognized by the Court itself.

Similarly, in Shelby County, Alabama v. Holder (2013), the Court declared a key provision of the Voting Rights Act of 1965 unconstitutional because it exceeded the scope of Congress’s powers under Section Five of the Fourteenth Amendment and Section Two of the Fifteenth Amendment (which grants Congress power to enforce the Fifteenth Amendment). That provision of the Voting Rights Act requires that certain states and counties with a history of race discrimination in voting obtain approval (called “preclearance”) from the United States Attorney General or a federal court before changing their election system (for example, enacting a law that requires voters to show identification). The Act included a formula that determines which states and counties need to get preclearance to change their election practices. Only some states and counties are required to seek approval before changing election policies, based on their history of discrimination in voting. When the Voting Rights Act was passed in 1965, the preclearance provision was set to expire after five years. The life of the provision was extended by statute in 1970, 1975 and 1982, and then for an additional 25 years in 2006.

In Shelby County, the Court determined that the 2006 extension was unconstitutional because the formula for determining which states and counties required to seek preclearance before changing their election practices was based on data about racial discrimination from the 1970s and had not been changed since 1982. Under these circumstances, the majority concluded that the selective imposition of the preclearance requirement ran afoul of what it described as “‘a fundamental principle of equal sovereignty’ among the States.”

Thus, under current law, there are two key limits on Congress’s power under Section Five of the Fourteenth Amendment, both of which are controversial. First, Section Five does not empower Congress to regulate private conduct, but only the actions of state and local governments. Second, Section Five does not provide Congress with the power to create new rights or expand existing rights, but rather only with the authority to prevent or remedy violations of rights already recognized by the courts. Moreover, the remedies provided by federal statutes must be “proportionate” and “congruent” to the scope of proven constitutional violations.