Section 5\u27s Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment Before \u3cem\u3eKatzenbach v. Morgan\u3c/em\u3e

Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan. Justice Brennan’s 1966 opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation,” the rights enumerated in that Amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in City of Boerne v. Flores, the Supreme Court rejected the heart of the Morgan decision as subversive of the American constitutional order. Today, Morgan stands largely as an aberration of American constitutional law. This Article attempts to place Morgan back into the stream of historical development from which it arose. When properly situated in its historical context, Justice Brennan’s opinion appears less puzzling and less aberrational. Morgan in fact built upon several decades of debates in the courts, in Congress, and among legal commentators over the scope of congressional enforcement power under Section 5—debates that largely have been missing from Section 5 scholarship. In reconstructing the history from this period, this Article also identifies the political and legal conditions that supported claims of shared constitutional interpretive responsibility in the past and considers whether these conditions might again be met in the future

The Civil Rights-Civil Liberties Divide

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences. Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech and due process rights of suspected subversives. Toward this end, they took two terms that had generally been used interchangeably and they created the civil rights-civil liberties distinction. Civil rights would forever after be attached to the struggle for racial equality and subsequent campaigns against other forms of public and private discrimination. Civil liberties would be attached to claims of individual freedom against generally applicable government regulatory power. The civil rights-civil liberties divide was contested from the beginning, however. In the late 1940s and early 1950s, the radical left condemned the divide as a tool for politically powerful liberal anticommunists to separate themselves from the declining fortunes of their former New Deal allies. In the 1960s, a new generation of critics of the divide made the case that the battles against discrimination and government oppression were indivisible. Some advocated a new label, “human rights,” which would subsume the categories of civil rights and civil liberties, while also recognizing social welfare rights. Despite these revisionist efforts, the civil rights-civil liberties divide survives, still contested, but also reinforced as each new generation puts it to new uses. This Essay not only reconstructs the largely forgotten history of the origins of the civil rights-civil liberties divide, it also identifies the ways in which labeling and categorizing the legal landscape can advance or impede legal change

Originalism and Congressional Power to Enforce the Fourteenth Amendment

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference to congressional constitutional interpretive authority. Second, even if one accepts originalism as the best way for courts to interpret the Constitution, this assumption does not necessarily apply to nonjudicial actors when they are fulfilling their own constitutional responsibilities—such as members of Congress acting to enforce the provisions of the Fourteenth Amendment. Placing judicial originalism into the foreground of our discussion of Section 5 jurisprudence thus offers additional support for a broader reading of the congressional enforcement power than exists today under Boerne

The Tea Party and the Constitution

This Article considers the Tea Party as a constitutional movement. I explore the Tea Party’s ambitious effort to transform the role of the Constitution in American life, examining both the substance of the Tea Party’s constitutional claims and the tactics movement leaders have embraced for advancing these claims. No major social movement in modern American history has so explicitly tied its reform agenda to the Constitution. From the time when the Tea Party burst onto the American political scene in early 2009, its supporters claimed in no uncertain terms that much recent federal government action overstepped constitutionally defined limitations. A belief that the Constitution establishes clear boundaries on federal power is at the core of the Tea Party’s constitutional vision. Yet the most distinctive—and I believe ultimately the most significant—aspect of the Tea Party’s constitutional vision is not necessarily the specifics of its constitutional claims (these ideas have long been common currency in conservative and libertarian circles), but the distinctly non-judicial and participatory approach the Tea Party has taken to its project of constitutional reform. The Tea Party offers a powerful case study what a recent generation of scholarship has identified as “popular constitutionalism.” Its constitutional agenda has little role for the courts. Tea Party activists have been strikingly successful in locating arenas of constitutional activism that do not depend upon the formal apparatus of the law, such as judges, lawyers, and complex legal doctrine. Rather than litigation, the Tea Party has pursued an agenda of constitutional practice focused on educational outreach and political mobilization. After describing the key elements of Tea Party constitutionalism, with a focus on the extrajudicial mechanisms through which the Tea Party has advanced its constitutional agenda, I conclude with an assessment of the possible impact of the Tea Party on constitutional law and practice, as well as its implications for future scholarship on popular constitutional mobilization

Freedom Comes Only from the Law\u27: The Debate Over Law\u27s Capacity and the Making of Brown v. Board of Education

From the late nineteenth into the mid-twentieth century, civil rights reformers fought, with little success, against the argument that law was powerless to change prejudicial attitudes and customs. It was widely assumed during the Jim Crow era that forcing the principle of racial equality on resistant southern whites might turn desegregation into yet another failed experiment in social reform by legal fiat - another Reconstruction or Prohibition. In the 1940s and 1950s, these assumptions began to give way because of the efforts of liberal scholars and activists who made the case that legal reform could be particularly effective at combating prejudice, and thereby improving race relations. Yet this struggle to overcome prevalent skepticism toward law’s capacity has been largely lost in historical scholarship. In this article I examine a generation of social scientists, historians, lawyers, and activists who made the case that race relations were more malleable than had been previously assumed and that properly conceived laws could affect not only outward behavior, but personal attitudes. Nowhere were these arguments more consequential than in the NAACP’s litigation campaign against segregated education. They provided an effective response to the fears of Supreme Court justices that a desegregation ruling would be ignored or, worse, rejected. I argue that the triumph of the idea that legal reform could reshape race relations was a critical factor in making possible the emergence of civil rights as a viable national issue in the early post-World War II period - and the great civil rights achievement of that era, Brown v. Board of Education

The Forgotten Issue? The Supreme Court and the 2016 Presidential Campaign

This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century. In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically avoided the issue as much as possible throughout the general election. The candidates’ relative lack of attention to the Court can partly be explained by factors unique to the 2016 campaign. Yet historically the Court has rarely been a major concern for presidential candidates. It was not until the 1960s that major party presidential candidates even considered the Supreme Court as an issue appropriate for presidential campaigns, and since then candidates have been reluctant to press future appointments to the Court as a centerpiece of their election efforts. The 2016 campaign, for all its precedent-shattering and unpredictable qualities, basically fell into a predictable dynamic when it came to the candidates’ treatment of the Court

Beyond the Opinion: Supreme Court Justices and Extrajudicial Speech

This Article examines how and why Supreme Court justices venture beyond their written opinions to speak more directly to the American people. Drawing on the history of the post-New Deal Court, I first provide a general framework for categorizing the kinds of contributions sitting justices have sought to make to the public discourse when employing various modes of extrajudicial speech—lectures, interviews, books, articles, and the like. My goal here is twofold: to provide a historically grounded taxonomy of the primary motivations behind extrajudicial speech; and to refute commonplace claims of a lost historical tradition of justices refraining from off-the-bench commentary about their work. I then turn to an analysis of the risks and opportunities for justices who go beyond their written opinion. I argue that our understanding of the extrajudicial contributions of the justices has too often been clouded by idealized, historically inaccurate assumptions about the Court and by exaggerated assessments of the potential costs of substantive, controversial extrajudicial speech for the Court’s legitimacy. Compared to the typical Supreme Court written opinion, extrajudicial speech allows for, even encourages, more personalized, more accessible, and potentially more effective pathways of communication with a general audience. By identifying the unique value of extrajudicial speech, I intend this Article to serve as an invitation for a more realistic and constructive discussion about the role of Supreme Court justices in our constitutional democracy