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

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

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

Parents Involved in Community Schools v. Seattle School District No.1: The Application of Strict Scrutiny to Race-Conscious Student Assignment Policies in K-12 Public Schools

Schools nationwide have used race-conscious student assignment policies to combat the resegregation of K–12 public schools. However, the Court in Parents Involved in Community Schools v. Seattle School District No. 1 dealt a disheartening blow to school districts concerned about their racial diversity, holding that certain race-conscious student assignment policies violated the Equal Protection Clause of the Fourteenth Amendment. The Court applied strict scrutiny in reaching this conclusion, contrary to the original intent of the drafters of the Fourteenth Amendment and the Court’s jurisprudence in desegregation cases. This Note examines the relationship between segregation, desegregation, and resegregation in America’s public schools and the Fourteenth Amendment. This Note argues that the Court erred in analyzing the race-conscious assignment policies under strict scrutiny for two reasons. First, the drafters of the Fourteenth Amendment did not intend for the Amendment to be “colorblind.” Second, race-conscious assignment policies should be analyzed as an extension of the Court’s desegregation jurisprudence, not as an extension of the Court’s affirmative action jurisprudence

Subtraction by Addition?: The Thirteenth and Fourteenth Amendments

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of the Thirteenth Amendment, which is increasingly in vogue in certain progressive circles, may have been good constitutional law only between 1865 and 1868. For purposes of argument, this Essay assumes that the participants in this Symposium correctly interpret the original Thirteenth Amendment when they construe the constitutional ban on slavery broadly in order to protect a wide variety of fundamental rights. Rather than interpret the Fourteenth Amendment as adding to the Thirteenth, however, this Essay explores the textual and political evidence supporting claims that the Fourteenth Amendment diminished the rights protected by the Thirteenth Amendment or, more accurately, diminished the likelihood that any of the post-Civil War Amendments would be interpreted as protecting rights that might have been protected by a freestanding Thirteenth Amendment. Thirteen plus one, in this case, may be less than thirteen

A Bridge Too Far: The Limits of the Political Process Doctrine in Schuette v. Coalition to Defend Affirmative Action

This commentary previews an upcoming Supreme Court case, Schuette v. Coalition to Defend Affirmative Action, in which the Court will consider whether Michigan violated the Equal Protection Clause of the Fourteenth Amendment by amending its constitution to prohibit race-based preferential treatment in public-university admissions decisions

Three Keys to the Original Meaning of the Privileges or Immunities Clause

Establishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning that cannot comfortably accommodate these three items is highly questionable

Thirteenth Amendment and the Regulation of Custom

Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to enforce the Fourteenth Amendment, few scholars have offered sustained treatment of custom as a way to understand the meaning and scope of the Thirteenth Amendment. This gap exists despite the fact that Congress specifically identified custom as a subject of regulation when it passed the Civil Rights Act of 1866 and despite the fact that the Thirteenth Amendment operates directly on the behavior of private parties. The fact that the Thirteenth Amendment can be applied to custom has important implications for how the Amendment should be construed. In particular, the concept of custom — especially as it relates to practices that upheld the slave system in the South — helps give shape and content to the other undefined terms the Thirteenth Amendment has generated: the “badges,” “incidents,” and “relics” of slavery. Ultimately, the concept of custom can help guide policymakers and judges who must consider the scope, the limitations, and the continuing relevance of the Thirteenth Amendment in the twenty-first century

A Textual-Historical Theory of the Ninth Amendment

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard use of the Ninth, in other words, has nothing to do with the text of the Ninth Amendment. The standard theory of the Ninth also places the text in considerable tension with that of the Tenth Amendment. Although both the Ninth and Tenth Amendments close with the same reference to “the people,” most contemporary scholars and courts treat the same term in the two amendments as having opposite meanings, with the Ninth referring to a single national people and Tenth referring to the people in the several states. Finally, the text of the Ninth Amendment appears to be in considerable tension with its historical application. Newly uncovered historical evidence reveals that for more than one hundred years after its enactment, courts applied the Ninth Amendment in a manner that preserved the autonomous rights of the states. The text of the Ninth, however, speaks only of the retained rights of the people, not the states. This article addresses these and other textual mysteries of the Ninth Amendment. The over-all effort is to construct a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution, particularly the Tenth and Fourteenth Amendments