Congress\u27s Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the framers intended to exclude from Congress. The framers also adopted the remedies to redress violations of substantive constitutional rights the Court says the framers intended to reserve exclusively to the states. The Rehnquist Court\u27s Fourteenth Amendment jurisprudence, contradicted by this history, is thus ripe for reevaluation

Searching for the Intent of the Framers of Fourteenth Amendment

IN 1946 JUSTICE HUGO BLACK DECLARED that one of the objects of the fourteenth amendment was to apply the Bill of Rights to the States. He was confident that an analysis of the intent of the framers of the amendment would support his assertion. A few years later the Supreme Court requested such an investigation, but when the analysis was made and the results presented to it, the Supreme Court concluded that the framers\u27 intent could not be determined. The uncertainty surrounding the intent of the framers of the fourteenth amendment has had profound implications on the application of that amendment to civil rights issues. It has probably led the Supreme Court to take a moderate position on the authority over civil rights which the amendment confers upon the national government, thereby largely limiting the application of the amendment to state action. Even that authority has been usually limited to positive forms of state action, such as unequal laws and discriminatory policies of public officials; it has not been extended to negative forms of state inaction such as the failure of public agencies and officials to protect civil rights from violations by private sources. Consequently, infringements of civil rights by private parties have not been proscribed by the fourteenth amendment. The absence of a conclusive and persuasive assessment of the intent of the framers of the fourteenth amendment has thus had a profound impact upon the law and civil rights. This study will show that the uncertainty surrounding the intent of the framers of the fourteenth amendment is due less to any special difficulties inherent in the amendment and the circumstances surrounding its adoption, than to the inadequacies and errors of the studies that have been made on the subject. Hopefully, this study will also demonstrate that inquiries into the intent of the framers of any laws or constitutional amendments are an historical rather than a judicial or legal function

Foreword: What\u27s So Wicked About Lochner?

In this brief Foreword to a forthcoming symposium on Lochner v. New York, Professor Randy Barnett asks the question, What\u27s So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today\u27s judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner. The author answers that Lochner is objectionable precisely because its reliance on the Due Process Clause perpetuated the serious misinterpretation of the Fourteenth Amendment established by the 5-4 decision in the Slaughter-House Cases. While Lochner\u27s use of a presumption in favor of the liberty of citizens is basically sound—however well it may have been applied in the actual case—its reliance on the Due Process Clause, rather than on the Privileges or Immunities Clause, undermined the legitimacy of its method. The author offers the outline of an approach to Section 1 of the Fourteenth Amendment that gives a distinct meaning to each of its four Constitution-altering clauses

The Creation and Destruction of the Fourteenth Amendment Duringthe Long Civil War

The article investigate the creation and destruction of the Fourteenth Amendment during the Civil War and how the U.S. Supreme Court undid most of the gains of the Fourteenth Amendment toward equality and equal rights for black citizens

Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May

This Article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings. In this Article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amar\u27s theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment. Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitution\u27s original meaning does not apply to state regulatory takings

The Constitutional Right not to Participate in Abortions: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures? The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself. Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions

The History of the Loyal Denominator

This article offers a defense on the view that aims to fit the text and history of the U.S. Constitution, preserve Fourteenth Amendment legitimacy, and clarify the Fourteenth Amendment\u27s author by framing it as an expression of the victorious Union\u27s Republican principles

The Antebellum Political Background of the Fourteenth Amendment

Epps presents information concerning the historical context of the Fourteenth Amendment. Among other implications, the Amendment should be viewed as an effort to defend the national government from control by transient majorities or undemocratic factions in the states

Hollingsworth v. Perry: Expressive Harm and the Stakes of Marriage

This commentary previews an upcoming Supreme Court case, Hollingsworth v. Perry, in which the Court may decide whether Proposition 8 violates either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment of the United States Constitution