Congressional Power Under the Civil War Amendments

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

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Seven constitutional amendments provide that "Congress shall have power to enforce" the amendment "by appropriate legislation." These are the 13th, 14th, 15th, 19th, 23rd, 24th, and 26th Amendments. The last four of these amendments deal with voting rights for women (19th), three electoral college votes for the District of Columbia in elections for President and Vice-President (23rd), no imposition of a poll tax or any other tax to be permitted to vote in elections to federal office (24th), and voting rights for persons 18 years or older (26th). These provisions are relatively self-explanatory, and no significant issues have been raised over their meaning or congressional statutes implementing them, such as congressional statutes providing procedures for selection of the District of Columbia's electors in presidential elections. However, a significant number of cases have addressed Congress' power to enforce the first three of these amendments - the 13th, 14th, and 15th Amendments - collectively called the Civil War Amendments.

ß 28 1 Introduction to Congressional Power Under the Civil War Amendments

Each provision in the Civil War Amendments - the 13th, 14th, and 15th Amendments - has a section providing that "Congress shall have power to enforce" the amendment "by appropriate legislation." The two main points of contention in interpreting this language have been what the word "enforce" means, and what the word "appropriate" means. Regarding "enforce," the question is whether Congress has the power to define for itself what action violates the Civil War Amendments and then provide remedies for that action, or is Congress limited to providing remedial schemes for violations found by the Court. Regarding "appropriate," the question is what should be the test to determine appropriate congressional action.

Because the Civil War Amendments were ratified between 1865 and 1870, it is not surprising that there were no decisions in the natural law era on congressional enforcement power. Of course, the Court had held in 1803 in Marbury v. Madison1 that it is a judicial function to say what the law is. This suggests that perhaps only the Court can determine violations of the Civil War Amendments, and that Congress is limited only to providing remedies for Court-determined infractions.

On the other hand, the Radical Republican Congress that spearheaded the Civil War Amendments were suspicious of a Supreme Court that, as of 1865, still included 4 Justices - Justices Wayne, Nelson, Catron, and Grier - who had voted with the majority in 1857 in Dred Scott v. Sandford, discussed at ß 25.1 nn.9-16, and a fifth Justice, Justice Clifford, confirmed in 1858 after being nominated by President Buchanan, also perceived as a Southern sympathizer. This suggests that the enforcement provisions of the Civil War Amendments were an attempt by Congress to reserve some ultimate interpretive power for itself as to the meaning of the 13th, 14th, and 15th Amendments.2

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The range of civil rights legislation passed by Congress between 1866 and 1871 also suggests that Congress had this broader vision of the power granted to it under the Civil War Amendments. Between 1866 and 1871, Congress passed a number of civil rights statutes, now codified at 42 U.S.C. ßß 1981-1986. Section 1981 attempts to secure equal contracting rights without regard to race. Section 1982 attempts to secure equal rights regarding property. Section 1983 provides for a federal cause of action for any deprivation of constitutional or federal statutory rights done under color of state law, custom, or usage. The vast majority of constitutional cases in the federal courts have been brought under this statute. Section 1985(1) provides for a damage action when two or more persons conspire to impede a federal officer from discharging official duties. Section 1985(2) proscribes the intimidation of federal court witnesses and parties. Section 1985(3) provides for a federal cause of action for damages for conspiracies that have the purpose and result of depriving any person of equal protection of the laws, or of equal privileges and immunities. Section 1986 creates a damage action against persons for negligent failure to prevent a violation of Section 1985 if the person had the power to prevent a violation, as would be true for law enforcement officials.3 Further, Congress provided some statutory protection to enforce the 15th Amendment's provisions regarding banning the denial of voting rights on account of race in the Enforcement Act of 1870. This Act was an attempt to regulate the violence and intimidation by the Ku Klux Klan regarding voting by blacks in 1868 and 1870.4

Regarding one such piece of legislation, the Civil Rights Act of 1866, it has been noted:

In the wake of Congress' enactment of the Civil Rights Act of 1866, concern arose among congressmen over the constitutionality of such nationalized civil rights legislation. Specifically, it was thought that "the power to prohibit slavery, peonage, or any interference with strict personal liberty was one thing, while the power to regulate the domestic relations of life, liberty, and property within the states was something very different." As Senator Eli SaulsburyPage 1326 suggested in a statement directed to the proponents of the Civil Rights Bill, "[i]f you had intended to bestow upon the freed slave all the rights of a free citizen, you ought to have gone further in your constitutional amendment, and provided that . . . there should be no inequality in civil rights." Concerns such as these were precisely what led Congress to take the next, and most significant, legislative step of the Reconstruction period - the adoption of the Fourteenth Amendment.5

Regarding the meaning of term "appropriate" legislation, which appears in the 13th, 14th, and 15th Amendments, the Court had stated in 1819 in McCulloch v. Maryland,6 "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." As applied to the Necessary and Proper Clause of Article I, ß 8, cl. 18, this language has been read to give Congress great latitude to determine "appropriate" legislation under a minimum rational review test, as noted at ßß 18.1.2 nn.31-40 & 18.2.5 n.125. This suggests that, as with the Necessary and Proper Clause in Article I, ß 8, great latitude should be given to Congress in determining "appropriate" legislation under the Civil War Amendments.

As noted at ßß 25.1 nn.20-28, 25.3 nn.59-64 & nn.108-18, during the formalist era the Court gave a limited reading to the Civil War Amendments in the Slaughter-House Cases,7 The Civil Rights Cases,8 and Plessy v. Ferguson.9 The Court also adopted a limited view regarding Congress' enforcement powers. For example, Congress passed the Civil Rights Act of 1875, which banned discrimination in places of public accommodation. That Act was viewed by its supporters as consistent with the Court's decision in the Slaughter-House Cases in 1873. Nevertheless, that Act was struck down in 1883 in The Civil Right Cases as violating the Court's understanding of the state action limits of the 14th Amendment.10 One author has remarked, "The Justices . . . pervert[ed] the plain intent of the Fourteenth Amendment - and the Fifteenth Amendment too . . . . Through the 1860's and 1870's, Congress had passed a series of laws designed to put teeth into the otherwise empty words of the post-war Amendments . . . . [T]he Court imperiously and impatiently swept asidePage 1327 almost all of these so-called Civil Rights Acts, either by flatly branding them - unconstitutional - no matter that the Constitution had been amended precisely to achieve what these laws were aimed to achieve - or by using legalistic chop-logic to 'interpret' them out of effective existence."11 Congressional attempts to enforce the 15th Amendment's voting provisions in the face of Ku Klux Klan activity seeking to minimize black turnout were also substantially frustrated.12

The assumption during the Holmesian era also seemed to be that only the Court could determine whether a violation of the Civil War Amendments had occurred. Congress was limited to providing remedies for Court-determined infractions. Under this reasoning, when the Court held in Lassiter v. Northampton County Board13 that a literacy test for voting was fair on its face, and was not used in a racially discriminatory fashion, and thus did not violate the 15th Amendment, there could be no Civil War Amendment basis for contrary congressional action.

During the instrumentalist era, in cases such as Katzenbach v. Morgan,14 discussed at ß 28.3 nn.31-35, the Court embraced the view, consistent with the practices of the Radical Republican Congresses in passing various civil rights law between 1866-1875, discussed at ß 28.1 nn.2-12, that Congress had independent power to determine for itself violations of the Civil War Amendments. As has been noted, "The Framers saw Congress, and not the federal courts, as the primary protector of the rights of their citizens. Congress' rights-generating power, and not that of the federal courts, was central to the original meaning of the Fourteenth Amendment."15 The Court also held in Katzenbach that "appropriate" legislation would be tested only by the minimal "plainly adapted to that end" standard of review of McCulloch v. Maryland.

Both of these conclusions have been limited by decisions during the modern natural law era. While still being faithful to the core holdings of...

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