CONGRESSIONAL POWER UNDER THE 14TH AMENDMENT, § 5 Flashcards
• Powers under 14th Amendment, § 5:
Broad view
Congress can interpret the 14th amendment to expand the scope of existing rights and create new rights because the authority to enforce the law necessarily requires some interpretive latitude and some independent judgment as to what does and does not break the law.
• Powers under 14th
Amendment, § 5:
Effects of the Broad View:
- Congress can create a safe harbor to protect a right encompassing more territory than what the Court has said is encompassed in that right.
- Congress can use its legislative judgment so long as Congress doesn’t attempt to undercut or dilute the rights recognized by the Court
- Congress and the Court both have a role in defining the power and states have to follow with whichever standard is stricter
• Powers under 14th Amendment, § 5:
Narrow View
Congress can only prevent and provide remedies under the 14th amendment for rights recognized by the Supreme Court.
• Powers under 14th Amendment, § 5:
Effect of the Narrow View
- Congress has to follow the Supreme Court’s lead and legislation must be specifically directed at the action that violates the constitution
- Congress cannot interpret the 14th amendment as providing rights that the Court has not yet identified as a constitutional right
• Enforcement is Limited to Remedial Legislation:
Congress’s enforcement role is limited to legislation that is congruent and proportional to the judicially defined constitutional problem at issue (i.e., Calibration between the magnitude of Congress’s remedy and the magnitude of the wrong)
• Powers under 14th Amendment, § 5:
What are the three underlying issues?
(1) What does “enforce” mean?
(2) What are the appropriate roles of the Court and Congress in deciding substantive content of rights?
(3) What is the proper allocation of power between the states and the federal government?
Powers under 14th Sec. 5
• United States v. Morrison (Virginia Tech Rape Case)
Congress does not have authority to enact 42 U.S.C § 13981 based on § 5 of the Fourteenth Amendment and its Equal Protection Clause
•
Legislation was not aimed at proscribing discrimination by officials and was directed at individuals who have committed individual acts
(i.e., Civil Rights Cases, Equal Protection Clause applies only to acts done by states, not to acts done by private individuals)
Powers under 14th Sec. 5
• Katzenback v. Morgan & Morgan
(Voting Rights Act of 1965 & English Literacy Requirement)
o Court adopts the broad view that §5 is a positive grant of legislative power and legislation is not subject to heightened scrutiny
• The Act is an appropriate measure (plainly adapted to further aims of the equal protection clause) to prevent the denial voting rights to large portions of the Puerto Rican population and deference was given to Congress to consider the literacy test as discriminatory
o Court relies on the reasoning in McCulloch (Declaring protection to Congress’s enumerated powers) to provide protection to Congress’s §5 powers
Powers under 14th Sec. 5
• City of Boerne v. Flores
(Church expansion blocked by ordinance preserving historical district)
o Supreme Court back pedals to the narrow view allowing only remedial measures to pass muster where there is congruence and proportionality between the means used and the ends to be achieved.
(Must be corrective or preventative, but not definitional)
Effect: RFRA cannot survive as a remedial measure
• It attempts a substantive change in constitutional protections and it is not plainly adapted to the wrong it seeks to protect
