Specific Clauses all provide "Congress shall No case has ever expanded §5 of

Post-Civil War Amendments - 13th [s. 2];
14th [s. 5]; 15th [s.2]
Reconstruction gave us 13th, 14th, 15th
amendments which introduced distinctive
structure into the Constitution.
- Two main questions - Who can Congress
regulate under these amendments? States or
private actors as well?
- What is scope of these powers - how broad is
power to enforce by appropriate legislation?
Nationalist, Broader Interpretation -
- 14th expands the scope of rights or creates new rights;
§5 can be used to proactively shape policy & expand
protections beyond constitutional minimums; Congress
has the power to interpret & create new rights.
-Embodied in Katzenbach.
- Advanced by GOP in 1990s when trying to get RFRA
passed.
Katzenbach v. Morgan - NY voting law, could Congress
legislatively overturn using Sec. 5 - Ct said fed law didn't
violate Const, Congress coequal branch w/ power to
interpret Const, can make determinations of constitutionality
to expand rights but cannot if they restrict rights.
Two views -
-Congress can expand meaning of 14th to anything.
-Congress has additional resources allowing them to find,
recognize violations SC cannot & remedy them under §5 -
not expanding power (this view helps align case to Boerne).
14th to cover purely private conduct
have power to enforce this article by appropriate What powers does this actually grant Congress?
that violates the 14th -
legislation."
- Significant because Congress must
use other means, such as the
13th - prohibits slavery & involuntary servitude 13th - applies to Private Actors & Government
Commerce Clause, to enforce
except as a means of punishment [unique insofar it - Congress has the power to pass laws prohibiting private
prohibition of racial discrimination
is directed towards private individuals]. discrimination "Congress has the power to rationally determine
-Why Katzenbach, Heart of Atlanta,
14th - applies ONLY to govt, not private action. what are the badges & incidents of slavery."
Morrison are CC cases - Congress
Most important, served as basis for most 14th - applies to Government had to use CC to enforce prohibition
legislation, generated most judicial and scholarly actors only! Cannot regulate private individuals. " No state against private individuals such as
attention; has three provisions against states [Due shall.." restaurants, hotels, etc.
Process, EP]. §5 has been used the most. - U.S. v. Morrison - Upholds state actor limitation. - Morrison - Solicitor General argued
15th - voting rights. - Why Katzenbach/Morrison/Heart of Atlanta CC cases. §5 after VAWA wasn?t upheld under
the commerce clause & if all cases
Narrower, Federalist Interpretation - -14th limits federal power; §5 is a remedial power only, must be since the Civil Rights Cases
used to remedy/fix/correct actual violations of 14th protections & other constitutional violations contradict that, they are based on
recognized by SCOTUS; cannot interpret 14th to define or create new const rights or expand or contract incorrect interpretation and should be
scope of rights overruled or modified
- Current state of the law under Boerne.
-Congress can only enforce Constitutional rights SC has recognized or logically implicit in those rights. Congress may only legislate to prevent or remedy violations of rights
-§5 does not give Congress power to expand 14th or create remedies for violations of rights SC not recognized by the Court ? must be ?congruence & proportionality?
recognized between injury to be prevented & the means adopted. Congress'
power to enact remedial acts depends on a record or finding of
unconstituional acts exist - legislation must be C&P to constitutional
violation.
- Congress cannot make substantive changes in governing law.
City of Boerne v. Flores [1997] - RFRA enacted in response to Smith decision
- MARBURY CASE - issue of whether Sec 5 allows Congress to independently & - Congress can enact preventative/protection measures to avoid
threatened 14th amendment injuries.
w finality interpret Const. substantive laws - passing RFRA told SC they were
wrong about its interpretation of Free Exercise Clause. - Congress cannot define injuries themselves. Congress can enact
administrative measures, but measures must be justified by current
- SC final arbitrator of the law, once it says what law is, that's it - "emphatically the
court's duty to say what the law is" - Congress canot independetly pass a law to needs (Shelby County v. Holder).
tell SCOTUS they were wrong or independently enforce substantive laws.

Substantive interpretations - is Rejection of Morgan - Kennedy - admitted language Federalism case - if

Congress better situated than Court to
determine if particular practice denies
rights conferred by 14th?
-Fact-finding ability - Congress has
greater fact-finding ability as Court
must deal case-by-case with adverse
litigants.
- Reasonable alternative interpretations
of liberty - possible that with respect to
some constitutional guarantees, broad
or narrow range of permissible
interpretations & courts sometimes
constrained by institutional
characteristics to adopt only one
interpretation within that range.
Sherbert v. Verner - woman believed
couldn't work on Sabbath [Sat] & was
fired; Ct held 1A requires govt
demonstrate compelling interest before
denying unemployment to someone for
refusing to work on Saturdays due to
their religious beliefs.
Two practical problems ? evidentiary
problem [sincere religious belief] ?
what?s sincere mean? Should Courts
be deciding what?s sincere?
Administrative problem ? many
religions with conflicting demands, hard
to have general laws bc need
exceptions & law gets complicated.
Debate as to whether allowing
Congress take independent role in
interpreting Const can be justified
under any circumstances in view of
Marbury - once loosed here, can any
restraint by imposed thereafter?
-Congress traditionally tried to stay
within judicially circumscribed
bounds of constitutionality, but if it
has independent role, restraints are
removed.
-Court can always rule on legislative
inroads made by Congress to
judicially granted rights but is it better
Congress not be encouraged to
embark on them in the first place?
Employment Division v. Smith - A
generally applicable &
constitutional law may explicitly or
implicitly discriminate against
religious beliefs.
Overturned Sherbert; Court -
where a state enacts criminal ban
generally applicable, state may
auto enforce that ban without any
balancing of the government?s
interest against individual?s
interest even when ban has effect
of substantially interfering with an
individual?s exercise of his religion
that ?could be interpreted as acknowledging a power Sec 5 allows Congress
FIRST - identify the right being protected.
in Congress to enact legislation that expands rights to pass laws regulating -Is there a history of this right being infringed
contained in Sec. 1 of 14th?- but not best states, extensive risk
by the govt? If not, likely fails this test.
interpretation of what Court was saying. to federal system is SECOND - is the remedy congruent &
-Sets forth new test for when Congress has gone imposed.
proportional to the violations occurring?
beyond remedial powers - C&P test - - Problem between I.e. no major remedies if no major violations.
Congress must have wide latitude in determining applying law and
where line is between appropriate remedial respecting individual
provision & improper substantive redefinition of a rights in the Bill of
14th amendment right BUT ?must be a congruence Rights.
& proportionality between injury to be prevented or Doctrine of Avoidance
remedied & means adopted to that end - if SC has 2 ways to
- Congress was enforcing §5 - thought it was decide on a case ? 1
protecting the right to free exercise of religion ? fact and 1
RFRA out of proportion - stringest test RFRA Constitutional ? Court
demands of state laws reflects lack of proportionality should decide on the
or congruence bt means adopted & legitimate end fact to avoid
to be achieved. RFRA prohibits much that wouldn't unnecessary
violate Const. & thus was deemed to exceed scope Constitutional
of Sec. 5 powers. laws/interpretation
Main significance of Boerne [taken w 11th amendment cases decided
after] - est. 2 related propositions captured in the phrase that
Congress?use of enforcement power must be ?congruent and
proportional? to harm being remedied -
- Congress has power under Sec. 5 of the 14th amendment to allow
private plaintiffs to sue the state only if Congress properly found
widespread unconstitutional state conduct in the area in question
AND
- Even if Congress properly found such conduct by state, it must
choose narrowly-tailored methods to combat the conduct