FOURTEENTH AMENDMENT, SECTION 5 (Judicial Construction)

Section 5 of the fourteenth amendment empowers Congress to "enforce, by appropriate legislation" the other provisions of the amendment, including the guarantees of the due process and equal protection clauses of section 1. Congress can, of course, enact criminal penalities or provide civil remedies to redress violations of the due process and equal protection clauses. The more difficult issue is whether the Fourteenth Amendment enforcement power is large enough to allow Congress to forbid conduct that does not violate due process or equal protection.

In the civil rights act of 1875, Congress made racial discrimination in "inns, public conveyances …, theatres and other places of public amusement" a crime. The civil rights cases (1883) held that the Fourteenth Amendment enforcement power did not provide sufficient support for the law. Congress only had the power under section 5 to "enforce" the amendment, which forbade only discrimination by the state. Therefore, legislation outlawing a "private wrong" was beyond the enforcement power. The same limit applies to the enforcement power in section 2 of the fifteenth amendment, for section 1 of that amendment is similarly interpreted to forbid only state abridgment of the right to vote.

Despite the holding of Civil Rights Cases, it has been settled that the Fourteenth Amendment gives Congress power to prohibit some behavior by private individuals. In united states v. guest (1966) six Justices agreed to an obiter dictum that Congress can "punish private conspiracies that interfere with fourteenth amendment rights, such as the right to utilize public facilities." That concept supports provisions of 1968 legislation that make it a federal crime for private individuals to deny others, "because of … race, color, religion or national origin," their rights to attend public schools or participate in programs provided or administered by the state.

It is less clear whether the holding of the Civil Rights Cases is still valid in denying Congress the power, under section 5 of the Fourteenth Amendment, to control private conduct that is not connected to any relationship between the victim and the states. No Supreme Court decision since Guest has spoken to that question. Because Congress has a wide range of other legislative powers available to it, this abstract question probably will not be answered in the foreseeable future. The civil rights act of 1964, for example, went further than the law invalidated in the Civil Rights Cases, outlawing discrimination by hotels, restaurants, and private employers. The 1964 Act was upheld, in Katzenbach v. McClung (1964), under Congress's broad power to regulate interstate commerce. The commerce power also supports 1968 federal legislation regulating private housing discrimination.

One question concerning the scope of the Fourteenth Amendment enforcement power may be more than academic. In cases like national league of cities v. usery (1976) and garcia v. san antonio metropolitan transit authority (1985), questions have been raised about the constitutionality of federal laws that impose obligations directly on state governments—for example, that the state pay its workers a minimum wage. It may be necessary to decide whether legislation imposing some obligations on state or local governments can be sustained under the Fourteenth Amendment enforcement power. The Court has concluded in City of Rome v. United States (1980) that the three constitutional amendments enacted following the civil war—the thirteenth amendment, the Fourteenth Amendment, and the Fifteenth Amendment—"were specifically designed as an expansion of federal power and an intrusion on state sovereignty." Thus, constitutional limits on national power imposed to protect state sovereignty are inapplicable to legislation authorized by these amendments. In City of Rome the Court upheld federal voting rights legislation requiring the city to obtain approval of the United States attorney general before it could reduce the size of its city council.

The power to provide "remedies" to prevent violations of the Fourteenth and Fifteenth Amendments allows Congress to invalidate some state laws that courts otherwise would have sustained. State literacy tests for voters are a clear example. The Supreme Court upheld literacy tests as a requirement for voters in Lassiter v. Northampton County Board of Elections (1959). Federal voting rights laws, however, have since suspended all state literacy tests. The Court sustained that legislation in oregon v. mitchell (1970). Congress could reasonably find that the states had used literacy tests to engage in racial discrimination. Even if literacy tests for voting did not themselves violate the Constitution, Congress decided that they were being used to violate the Fifteenth Amendment. Congress could then invalidate all literacy tests as a remedy to prevent racial discrimination in voting.

Modern cases have uniformly sustained federal laws enacted to provide broad remedies for possible violations of the Fourteenth and Fifteenth Amendments. There has been more controversy concerning the question of whether Congress has power to interpret the guarantees of section 1 of the Fourteenth Amendment. In katzen-bach v. morgan (1965) the Court sustained a provision of the voting rights act of 1965 that suspended literacy tests for voting in New York by persons who had completed six grades of school in Puerto Rico. The Court sustained that legislation, in part on the ground that Congress could decide that New York's literacy test law, which waived the test only for citizens who had completed six grades of school in the English language, violated the equal protection clause of section 1 of the Fourteenth Amendment. Two dissenters argued that only courts could interpret the Constitution and warned that the power to interpret the Constitution's guarantees of liberty could authorize Congress to dilute those guarantees as well as amplify them.

The continuing authority of the interpretive theory of Katzenbach v. Morgan is now in some doubt. Amendments to the Voting Rights Act in 1970 extended the right to vote to eighteen-year-olds in both state and federal elections, interpreting the equal protection clause to declare that it was unconstitutional to deny them the right to vote because of their age. Different 5–4 majorities of the Court in Oregon v. Mitchell upheld the statute as applied to federal elections and invalidated it as applied to state elections. Four of the Justices would have upheld the statute in its entirety, while four would have held that Congress lacked the power to change the voting age in either state or federal elections. The specific issue of voting age has, of course, been mooted by enactment of the twenty-sixth amendment the following year. Since 1970 Congress has not relied on the interpretive theory in enactments enforcing the Fourteenth and Fifteenth Amendments.

William Cohen
(1992)

Bibliography

Bickel, Alexander M. 1966 The Voting Rights Cases. Supreme Court Review 1966:79–102.

Cohen, William 1975 Congressional Power to Interpret Due Process and Equal Protection. Stanford Law Review 27:603–620.

Cox, Archibald 1971 The Role of Congress in Constitutional Determination. University of Cincinnati Law Review 40:199–261.