Congressional Definition of Fourteenth Amendment Rights
In the Civil Rights Cases,2228 the Court observed that “the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation,” that is, laws to counteract and overrule those state laws that § 1 forbids the states to adopt. The Court was quite clear that, under its responsibilities of judicial review, it was the body that would determine that a state law was impermissible and that a federal law passed pursuant to § 5 was necessary and proper to enforce § 1.2229 But, in United States v. Guest,2230 Justice Brennan protested that this view “attributes a far too limited objective to the Amendment’s sponsors,” that in fact “the primary purpose of the Amendment was to augment the power of Congress, not the judiciary.”
In Katzenbach v. Morgan,2231 Justice Brennan, this time speaking for the Court, in effect overrode the limiting view and posited a doctrine by which Congress was to define the substance of what the legislation enacted pursuant to § 5 must be appropriate to. That is, in upholding the constitutionality of a provision of the Voting Rights Act of 19652232 barring the application of English literacy requirements to a certain class of voters, the Court rejected a state argument “that an exercise of congressional power under § 5 . . . that prohibits the enforcement of a state law can only be sustained if the judicial branch determines that the state law is prohibited by the provisions of the Amendment that Congress sought to enforce.”2233 Because the Court had previously upheld an English literacy requirement under equal protection challenge,2234 acceptance of the argument would have doomed the federal law. But, said Justice Brennan, Congress itself might have questioned the justifications put forward by the state in defense of its law and might have concluded that, instead of being supported by acceptable reasons, the requirements were unrelated to those justifications and discriminatory in intent and effect. The Court would not evaluate the competing considerations that might have led Congress to its conclusion; because Congress “brought a specially informed legislative competence” to an appraisal of voting requirements, “it was Congress’s prerogative to weigh” the considerations and the Court would sustain the conclusion if “we perceive a basis upon which Congress might predicate a judgment” that the requirements constituted invidious discrimination.2235
In dissent, Justice Harlan protested that “[i]n effect the Court reads § 5 of the Fourteenth Amendment as giving Congress the power to define the substantive scope of the Amendment. If that indeed be the true reach of § 5, then I do not see why Congress should not be able as well to exercise its § 5 ‘discretion’ by enacting statutes so as in effect to dilute equal protection and due process decisions of this Court.”2236 Justice Brennan rejected this reasoning: “We emphasize that Congress’s power under § 5 is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.”2237 Congress responded, however, in both fashions. On the one hand, in the 1968 Civil Rights Act it relied on Morgan in expanding federal powers to deal with private violence that is racially motivated, and to some degree in outlawing most private housing discrimination;2238 on the other hand, it enacted provisions of law purporting to overrule the Court’s expansion of the self-incrimination and right-to-counsel clauses of the Bill of Rights, expressly invoking Morgan.2239
Congress’s power under Morgan returned to the Court’s consideration when several states challenged congressional legislation2240 lowering the voting age in all elections to 18 and prescribing residency and absentee voting requirements for the conduct of presidential elections. In upholding the latter provision and in dividing over the former, the Court revealed that Morgan’s vitality was in some considerable doubt, at least with regard to the reach that many observers had previously seen.2241 Four Justices accepted Morgan in full,2242 while one Justice rejected it totally2243 and another would have limited it to racial cases.2244 The other three Justices seemingly restricted Morgan to its alternate rationale in passing on the age reduction provision but the manner in which they dealt with the residency and absentee voting provision afforded Congress some degree of discretion in making substantive decisions about what state action is discriminatory above and beyond the judicial view of the matter.2245
More recent decisions read broadly Congress’s power to make determinations that appear to be substantive decisions with respect to constitutional violations.2246 Acting under both the Fourteenth and Fifteenth Amendments, Congress has acted to reach state electoral practices that “result” in diluting the voting power of minorities, although the Court apparently requires that it be shown that electoral procedures must have been created or maintained with a discriminatory animus before they may be invalidated under the two Amendments.2247 Moreover, movements have been initiated in Congress by opponents of certain of the Court’s decisions, notably the abortion rulings, to use § 5 powers to curtail the rights the Court has derived from the Due Process Clause and other provisions of the Constitution.2248
City of Boerne v. Flores,2249 however, illustrates that the Court will not always defer to Congress’s determination as to what legislation is appropriate to “enforce” the provisions of the Fourteenth Amendment. In Flores, the Court held that the Religious Freedom Restoration Act,2250 which expressly overturned the Court’s narrowing of religious protections under Employment Division v. Smith,2251 exceeded congressional power under § 5 of the Fourteenth Amendment. Although the Court allowed that Congress’s power to legislate to deter or remedy constitutional violations may include prohibitions on conduct that is not itself unconstitutional, the Court also held that there must be “a congruence and proportionality” between the means adopted and the injury to be remedied.2252 Unlike the pervasive suppression of the African-American vote in the South that led to the passage of the Voting Rights Act, there was no similar history of religious persecution constituting an “egregious predicate” for the far-reaching provision of the Religious Freedom Restoration Act. Also, unlike the Voting Rights Act, the Religious Freedom Restoration Act contained no geographic restrictions or termination dates.2253
A reinvigorated Eleventh Amendment jurisprudence has led to a spate of decisions applying the principles the Court set forth in Boerne, as litigants precluded from arguing that a state’s sovereign immunity has been abrogated under Article I congressional powers2254 seek alternative legislative authority in § 5. For instance, in Florida Prepaid Postsecondary Educ. Expense Board v. College Savings Bank,2255 a bank that had patented a financial method designed to guarantee investors sufficient funds to cover the costs of college tuition sued the State of Florida for administering a similar program, arguing that the state’s sovereign immunity had been abrogated by Congress in exercise of its Fourteenth Amendment enforcement power. The Court, however, held that application of the federal patent law to the states was not properly tailored to remedy or prevent due process violations. The Court noted that Congress had identified no pattern of patent infringement by the states, nor a systematic denial of state remedy for such violations such as would constitute a deprivation of property without due process.2256
A similar result was reached regarding the application of the Age Discrimination in Employment Act to state agencies in Kimel v. Florida Bd. of Regents.2257 In determining that the Act did not meet the “congruence and proportionality” test, the Court focused not just on whether state agencies had engaged in age discrimination, but on whether states had engaged in unconstitutional age discrimination. This was a particularly difficult test to meet, as the Court has generally rejected constitutional challenges to age discrimination by states, finding that there is a rational basis for states to use age as a proxy for other qualities, abilities and characteristics.2258 Noting the lack of a sufficient legislative record establishing broad and unconstitutional state discrimination based on age, the Court found that the ADEA, as applied to the states, was “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to or designed to prevent unconstitutional behavior.”2259
Despite what was considered by many to be a better developed legislative record, the Court in Board of Trustees of Univ. of Ala. v. Garrett2260 also rejected the recovery of money damages against states, this time under of the Americans with Disabilities Act of 1990 (ADA).2261 Title I of the ADA prohibits employers, including states, from “discriminating against a qualified individual with a disability”
2262 and requires employers to “make reasonable accommodations [for] . . . physical or mental limitations . . . . unless [to do so] . . . would impose an undue hardship on the . . . business.”2263 Although the Court had previously overturned discriminatory legislative classifications based on disability in City of Cleburne v. Cleburne Living Center,2264 the Court had held that determinations of when states had violated the Equal Protection Clause in such cases were to be made under the relatively deferential standard of rational basis review. Thus, failure of an employer to provide the kind “reasonable accommodations” required under the ADA would not generally rise to the level of a violation of the Fourteenth Amendment, and instances of such failures did not qualify as a “history and pattern of unconstitutional employment discrimination.”2265 Thus, according the Court, not only did the legislative history developed by the Congress not establish a pattern of unconstitutional discrimination against the disabled by states,2266 but the requirements of the ADA would be out of proportion to the alleged offenses.
The Court’s more recent decisions in this area, however, seem to de-emphasize the need for a substantial legislative record when the class being discriminated against is protected by heightened scrutiny of the government’s action. In Nevada Department of Human Resources v. Hibbs,2267 the Court considered the recovery of monetary damages against states under the Family and Medical Leave Act. This Act provides, among other things, that both male and female employees may take up to twelve weeks of unpaid “family care” leave to care for a close relative with a serious health condition. Noting that § 5 could be used to justify prophylactic legislation, the Court accepted the argument that the Act was intended to prevent gender-based discrimination in the workplace tracing to the historic stereotype that women are the primary caregivers. Congress had documented historical instances of discrimination against women by state governments, and had found that women were provided maternity leave more often than were men.
Although there was a relative absence of proof that states were still engaged in wholesale gender discrimination in employment, the Court distinguished Garrett and Kimel, which had held Congress to a high standard for justifying legislation attempting to remedy classifications subject only to rational basis review. “Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rational basis test . . . it was easier for Congress to show a pattern of state constitutional violations.”2268 Consequently, the Court upheld an across-the-board, routine employment benefit for all eligible employees as a congruent and proportional response to the “state-sanctioned” gender stereotypes.
Nine years after Hibbs, the Court returned to the Family and Medical Leave Act, this time to consider the Act’s “self care” (personal medical) leave provisions. There, in Coleman v. Court of Appeals of Md., a four-Justice plurality, joined by concurring Justice Scalia, found the self care provisions too attenuated from the gender protective roots of the family care provisions to merit heightened consideration.2269 According to the plurality, the self care provisions were intended to ameliorate discrimination based on illness, not sex. The plurality observed that paid sick leave and disability protection were almost universally available to state employees without intended or incidental gender bias. The addition of unpaid self care leave to this state benefit might help some women suffering pregnancy related illness, but the establishment of a broad self care leave program under the FMLA was not a proportional or congruent remedy to protect any constitutionally based right under the circumstances.2270
The Court in Tennessee v. Lane2271 held that Congress could authorize damage suits against a state for failing to provide disabled persons physical access to its courts. Title II of the Americans with Disabilities Act provides that no qualified person shall be excluded or denied the benefits of a public program by reason of a disability,2272 but since disability is not a suspect class, the application of Title II against states would seem questionable under the reasoning of Garrett.2273 Here, however, the Court evaluated the case as a limit on access to court proceedings, which, in some instances, has been held to be a fundamental right subject to heightened scrutiny under the Due Process Clause.2274
Reviewing the legislative history of the ADA, the Court found that Title II, as applied, was a congruent and proportional response to a Congressional finding of “a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.”2275 However, as Justice Rehnquist pointed out in dissent, the deprivations the majority relied on were not limited to instances of imposing unconstitutional deprivations of court access to disabled persons.2276 Rather, in an indication of a more robust approach where protection of fundamental rights is at issue, the majority also relied more broadly on a history of state limitations on the rights of the disabled in areas such as marriage or voting, and on limitations of access to public services beyond the use of courts.2277
Congress’s authority under § 5 of the Fourteenth Amendment to abrogate states’ Eleventh Amendment immunity is strongest when a state’s conduct at issue in a case is alleged to have actually violated a constitutional right. In United States v. Georgia,2278 a disabled state prison inmate who used a wheelchair for mobility alleged that his treatment by the State of Georgia and the conditions of his confinement violated, among other things, Title II of the ADA and the Eighth Amendment (as incorporated by the Fourteenth Amendment). A unanimous Court found that, to the extent that the prisoner’s claims under Title II for money damages were based on conduct that independently violated the provisions of the Fourteenth Amendment, they could be applied against the state. In doing so, the Court declined to apply the congruent and proportional response test, distinguishing the cases applying that standard (discussed above) as not generally involving allegations of direct constitutional violations.2279
- 109 U.S. 3, 13–14 (1883).
- Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).
- 383 U.S. 745, 783 and n.7 (1966) (concurring and dissenting).
- 384 U.S. 641 (1966). Besides the ground of decision discussed here, Morgan also advanced an alternative ground for upholding the statute. That is, Congress might have overridden the state law not because the law itself violated the Equal Protection Clause but because being without the vote meant the class of persons was subject to discriminatory state and local treatment and giving these people the ballot would afford a means of correcting that situation. The statute therefore was an appropriate means to enforce the Equal Protection Clause under “necessary and proper” standards. Id. at 652–653. A similar “necessary and proper” approach underlay South Carolina v. Katzenbach, 383 U.S. 301 (1966), under the Fifteenth Amendment’s enforcement clause.
- 79 Stat. 439, 42 U.S.C. § 1973b(e).
- 384 U.S. at 648.
- Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959).
- Katzenbach v. Morgan, 384 U.S. 641, 653–56 (1966).
- 384 U.S. at 668. Justice Stewart joined this dissent.
- 384 U.S. at 651 n.10. Justice O’Connor for the Court quoted and reiterated Justice Brennan’s language in Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 731–33 (1982).
- 82 Stat. 73, 18 U.S.C. § 245. See S. REP. NO. 721, 90th Congress, 1st Sess. 6–7 (1967). See also 82 Stat. 81, 42 U.S.C. §§ 3601 et seq.
- Title II, Omnibus Safe Streets and Crime Control Act, 82 Stat. 210, 18 U.S.C. §§ 3501, 3502. See S. REP. NO. 1097, 90th Congress, 2d Sess. 53–63 (1968). The cases that were subjects of the legislation were Miranda v. Arizona, 384 U.S. 436 (1966), and United States v. Wade, 388 U.S. 218 (1967), insofar as federal criminal trials were concerned.
- Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. §§ 1973aa–1, 1973bb.
- Oregon v. Mitchell, 400 U.S. 112 (1970).
- 400 U.S. at 229, 278–81 (Justices Brennan, White, and Marshall), id. at 135, 141–44 (Justice Douglas).
- 400 U.S. at 152, 204–09 (Justice Harlan).
- 400 U.S. at 119, 126–31 (Justice Black).
- The age reduction provision could be sustained “only if Congress has the power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and what state interests are ‘compelling.’ ” 400 U.S. at 296 (Justices Stewart and Blackmun and Chief Justice Burger). In their view, Congress did not have that power and Morgan did not confer it. But in voting to uphold the residency and absentee provision, the Justices concluded that “Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the privilege of taking up residence in another State” without reaching an independent determination of their own that the requirements did in fact have that effect. Id. at 286.
- See discussion of City of Rome v. United States, 446 U.S. 156, 173–83 (1980), under the Fifteenth Amendment, infra. See also Fullilove v. Klutznick, 448 U.S. 448, 476–78 (1980) (plurality opinion by Chief Justice Burger), and id. at 500–02 (Justice Powell concurring).
- The Voting Rights Act Amendments of 1982, Pub. L. 97–205, 96 Stat. 131, amending 42 U.S.C. § 1973, were designed to overturn City of Mobile v. Bolden, 446 U.S. 55 (1980). A substantial change of direction in Rogers v. Lodge, 458 U.S. 613 (1982), handed down coextensively with congressional enactment, seems to have brought Congress and the Court into essential alignment, thereby avoiding a possible constitutional conflict.
- See The Human Life Bill: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 97th Congress, lst Sess. (1981). An elaborate constitutional analysis of the bill appears in Estreicher, Congressional Power and Constitutional Rights: Reflections on Proposed ‘Human Life’ Legislation, 68 VA. L. REV. 333 (1982).
- 521 U.S. 507 (1997).
- Pub. L. 103–141, 107 Stat. 1488, 42 U.S.C. §§ 2000bb et seq.
- 494 U.S. 872 (1990).
- 521 U.S. at 533.
- 521 U.S. at 532–33. The Court found that the Religious Freedom Restoration Act was “so far out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id.
- Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (Article I powers may not be used to abrogate a state’s Eleventh Amendment immunity, but Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), holding that Congress may abrogate Eleventh Amendment immunity in exercise of Fourteenth Amendment enforcement power, remains good law). See discussion pp. 1533–37.
- 527 U.S. 627 (1999).
- 527 U.S. at 639–46. See also College Savings Bank v. Florida Prepaid Post-secondary Educ. Expense Bd., , 527 U.S. 666 (1999) (Trademark Remedy Clarification Act amendment to Lanham Act subjecting states to suits for false advertising is not a valid exercise of Fourteenth Amendment power; neither the right to be free from a business competitor’s false advertising nor a more generalized right to be secure in one’s business interests qualifies as a “property” right protected by the Due Process Clause).
- 528 U.S. 62 (2000). Again, the issue of the Congress’s power under § 5 of the Fourteenth Amendment arose because sovereign immunity prevents private actions against states from being authorized under Article I powers such as the commerce clause.
- See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991) (applying rational basis test to uphold mandatory retirement age of 70 for state judges).
- 528 U.S. at 86, quoting City of Boerne, 521 U.S. at 532.
- 531 U.S. 356 (2001).
- 42 U.S.C. §§ 12111–12117.
- 42 U.S.C. § 12112(a).
- 42 U.S.C. § 12112(b)(5)(A).
- 473 U.S. 432 (1985).
- 531 U.S. at 368.
- As Justice Breyer pointed out in the dissent, however, the Court seemed determined to accord Congress a degree of deference more commensurate with review of an agency action, discounting portions of the legislative history as based on secondary source materials, unsupported by evidence and not relevant to the inquiry at hand.
- 538 U.S. 721 (2003).
- 538 U.S. at 736. Statutory classifications that distinguish between males and females are subject to heightened scrutiny, Craig v. Boren, 429 U.S. 190, 197–199 (1976), so they must be substantially related to the achievement of important governmental objectives, United States v. Virginia, 518 U.S. 515, 533 (1996).
- 566 U.S. ___, No. 10–1016, slip op. (2012) (male state employee denied unpaid sick leave).
- Justice Ginsburg, writing for herself and three others, extensively reviewed the historical and legislative record and concluded that the family care and the self care provisions were of the same cloth. Both provisions grew out of concern for discrimination against pregnant workers, and, the FMLA’s leave provisions were not, in the dissent’s opinion, susceptible to being rent into separate pieces for analytical purposes.
- 541 U.S. 509 (2004).
- 42 USCS § 12132.
- 531 U.S. 356 (2001).
- See, e.g., Faretta v. California, 422 U.S. 806, 819, n.15 (1975) (a criminal defendant has a right to be present at all stages of a trial where his absence might frustrate the fairness of the proceedings).
- 541 U.S. at 524.
- 541 U.S. at 541–42 (Rehnquist, J., dissenting).
- 541 U.S. at 524–25. Justice Rehnquist, in dissent, disputed the reliance of the Congress on evidence of disability discrimination in the provision of services administered by local, not state, governments, as local entities do not enjoy the protections of sovereign immunity. Id. at 542–43. The majority, in response, noted that local courts are generally treated as arms of the state for sovereign immunity purposes, Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977), and that the action of non-state actors had previously been considered in such pre-Boerne cases as South Carolina v. Katzenbach, 383 U.S. 301, 312–15 (1966).
- 546 U.S. 151 (2006).
- “While the Members of this Court have disagreed regarding the scope of Congress’s ‘prophylactic’ enforcement powers under § 5 of the Fourteenth Amendment, no one doubts that § 5 grants Congress the power to ‘enforce . . . the provisions’ of the Amendment by creating private remedies against the States for actual violations of those provisions.” 546 U.S. at 158 (citations omitted).