The Danger of the Drafters' Intent:
Section 5 of the Fourteenth Amendment and the Need to Limit Congressional Power

Everyone knows the Executive Branch enforces the Constitution, while the Supreme Court interprets it. But what is less commonly known is that Congress, under Section 5 of the Fourteenth Amendment, may have the power to do both. An upcoming Supreme Court case, Tennessee v. Lane, will soon define exactly how strong Congress's power really is.

The Thirteenth, Fourteenth, and Fifteenth Amendments to our Constitution are collectively known as the "Reconstruction Amendments." The Thirteenth Amendment famously freed the slaves. The Fourteenth Amendment requires -- among other things -- that the states guarantee to individuals both due process of law and equal protection of the law. The Fifteenth Amendment is intended to prevent racial discrimination when it comes to voting rights.

Each of the three Amendments contains an "enforcement" clause -- giving Congress the potentially broad ability to "enforce" the Amendment's provisions. (The Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth Amendments also have similar provisions). For instance, Section 5 of the Fourteenth Amendment says that "[t]he Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

How much power, exactly, does Section 5 give Congress? Congress enacted Title II of the Americans with Disabilities Act (ADA) -- which guarantees the disabled access to all of a state's public services -- pursuant to that power. Now the Court, in Tennessee v. Lane, will decide if Congress overreached.

In the case, the Respondent sued Tennessee because the courthouse in which he was tried lacked an elevator that would have given disabled persons access to the courtroom. Lane, who is disabled, was arrested for not appearing at his arraignment, despite the fact that he had no way to enter the courthouse.

Article I of the Constitution gives Congress the power to make laws -- but it is not the only source of Congress's power to legislate. To the contrary, enforcement clauses such as the one I've quoted above have been interpreted to grant the same power.

Thus, Congress has relied upon Section 5 of the Fourteenth Amendment to enact, for example, the Voting Rights Act, the ADA, and the Family and Medical Leave Act. In 1997, however, in the landmark case of City of Boerne v. Flores, the Supreme Court limited Congress's power to enact Section 5 legislation.

In Boerne, the Court held that Congress could invoke Section 5 only after satisfying two conditions. First, it has to legislate based on proof that the Fourteenth Amendment indeed was violated. Second, it must demonstrate that its legislation did not go too far, in light of that proof. This test is called the test of "congruence and proportionality."

Since Boerne, the Court has several times held that Congress failed the "congruence and proportionality" test. For example, in Board of Trustees v. Garrett, the Court struck down Title I of the ADA as overbroad -- that is, not proportional to the record of Fourteenth Amendment violations Congress had before it.

There, the Court noted that Congress had only found a handful of equal protection violations. In light of this sparse record, the Court held, compelling the states to offer reasonable accommodations to disabled state employees went too far.

What will the Court do in Tennessee v. Lane? That largely depends on how the Justices see the congressional record. If they see a strong pattern of constitutional violations, they will be more willing to hold that Congress had the power, under Section 5, to fashion a broad remedy like Title II.

But if the Court believes the record in sparse -- as it thought was the case in Garrett -- then it may strike down Title II.

There is near-unanimous agreement among law professors that the Supreme Court's "congruence and proportionality" test is a mistake -- for it betrays the original intent of the Fourteenth Amendment's drafters.

For example, Professor Akhil Amar has roundly criticized the Court for taking too active a role in striking Section 5 legislation. In an article entitled "The Constitution vs. The Court," Amar argues that the Court has "neutered" congressional power under Section 5. The Boerne framework, says Amar, does not mirror the gloss that the Court has traditionally given to all three of the Reconstruction amendments.

Similarly, Professor Michael McConnell argues, in his article "Institutions and Interpretation," that the drafters of the Reconstruction Amendments intended for Congress, not the Court, to be the primary interpreter of the scope of the rights set forth in the Amendments. McConnell argues that the drafters of Section 5 wanted Congress to possess presumptive authority to recognize and remedy constitutional violations.

Some scholars have gone even farther. For instance, Professor Ellen Katz, in her article "Reinforcing Representation," argues that the drafters of the Fourteenth Amendment did not mean to limit Congress's power to only prohibiting government action. To the contrary, she urges, their intent was that Congress could prevent discriminatory behavior on the part of individuals, where that behavior contributes to the deprivation of constitutional rights.

Under Katz's theory, Congress could use its Section 5 power to outlaw even behavior that could never violate the Fourteenth Amendment itself -- since the Amendment's provisions are guarantees solely against government action, not private action.

Suppose one concedes that these respected academics are right, and Boerne is not what the Fourteenth Amendment's drafters intended. That leads to another question: Should the drafters' intent be determinative here?

American history bears witness to what happens when a grant of power is interpreted broadly. That grant of power is the "necessary and proper" clause. And while reading that clause broadly may work, reading Section 5 of the Fourteenth Amendment broadly may not.

Article I, Section 8, clause 18 of the Constitution states that Congress may "make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers [in Article I]…" In McCulloch v. Maryland, Chief Justice Marshall gave a very broad meaning to the clause, finding that it allowed Congress to enact laws that were useful, though not literally "necessary," for executing its powers. The rest was history: the federal government expanded and began to legislate in virtually every possible area.

Should Congress be allowed the same kind of near-unbounded lawmaking authority that it enjoys under the "necessary and proper" clause, when it comes to enforcing the Fourteenth Amendment in Section 5?

In considering the question, it's worth noting the breadth of the Amendment itself -- concepts such as due process of law and equal protection are hardly self-defining. Accordingly, almost any federal law could be justified as an attempt to ensure that these rights are adequately protected.

If granted this power, Congress is likely to abuse it -- and not only for liberal goals. Suppose Congress were to preclude state schools from using the type of race-based admissions preferences the Supreme Court recently approved. Congress could justify this conservative measure as an attempt to enforce its interpretation of the Equal Protection Clause.

If the Court finds that Lane, despite the egregious violations of his rights, has no right to sue Tennessee under Title II, liberal supporters of the ADA will most certainly cry foul. But in the end, this is not so much an issue of politics, as one of power.

Whatever one's political bent, one should think twice before giving Congress, which already has vast "necessary and proper" power, even more power -- and the power to define constitutional rights in ways that may clash with the Supreme Court's own interpretations, whether liberal or conservative.