Legislative power: Reconstruction amendments

Question 1

Thirteenth Amendment

Answer 1

The Thirteenth Amendment gives Congress the power to adopt legislation rationally related to eliminating involuntary servitude.

This power:

• has been broadly interpreted to allow Congress to regulate both private and government action and
• is the only Amendment that authorizes Congress to regulate purely private conduct.

Question 2

Fourteenth Amendment

Answer 2

Under the Amendment, Congress can only remedy violations of individual rights by state governments—but only as those rights have been defined by the courts.

The Amendment does not allow Congress to redefine constitutional rights by legislation.

Question 3

Fourteenth Amendment: congruence and proportionality

Answer 3

There has to be a reasonable fit between the remedial law enacted by Congress and the constitutional right as defined by the U.S. Supreme Court.

If there is no constitutional injury to prevent, a proposed law would be neither congruent nor proportional.

Question 4

Fifteenth Amendment

Answer 4

The amendment grants Congress the power to prevent racial discrimination in voting.

Question 5

Fourteenth Amendment: national citizenship

Answer 5

The protection of national citizenship in Clause I of the Fourteenth Amendment prevents Congress from taking away a person’s citizenship without her consent, unless that citizenship was obtained by fraud or in bad faith.

Question 6

Fourteenth Amendment: state sovereign immunity

Answer 6

Congress may expressly abrogate state immunity only if:

(1) it is clearly acting under Section Five of the Fourteenth Amendment
(2) to enforce rights:
(a) created by Section One, or
(b) to enforce rights created by the remedial provisions of the other Civil War Amendments.

If state restrictions do not violate Equal Protection rights, for example, Congress has no power to abrogate state sovereign immunity with respect to actions relating to the state restrictions.