Fourteenth Amendment, Section 5 (Judicial Construction)

• Author: William Cohen
• Pages: 1089-1090

Page 1089

Section 5 of the FOURTEENTH AMENDMENT empowers Congress to "enforce, by appropriate legislation" the other provisions of the amendment, including the guarantees of the DUE PROCESS and EQUAL PROTECTION clauses of section 1. Congress can, of course, enact criminal penalities or provide civil remedies to redress violations of the due process and equal protection clauses. The more difficult issue is whether the Fourteenth Amendment enforcement power is large enough to allow Congress to forbid conduct that does not violate due process or equal protection.

In the CIVIL RIGHTS ACT OF 1875, Congress made RACIAL DISCRIMINATION in "inns, public conveyances ?, theatres and other places of public amusement" a crime. The CIVIL RIGHTS CASES (1883) held that the Fourteenth Amendment enforcement power did not provide sufficient support for the law. Congress only had the power under section 5 to "enforce" the amendment, which forbade only discrimination by the state. Therefore, legislation outlawing a "private wrong" was beyond the enforcement power. The same limit applies to the enforcement power in section 2 of the FIFTEENTH AMENDMENT, for section 1 of that amendment is similarly interpreted to forbid only state abridgment of the right to vote.

Despite the holding of Civil Rights Cases, it has been settled that the Fourteenth Amendment gives Congress power to prohibit some behavior by private individuals. In UNITED STATES V. GUEST (1966) six Justices agreed to an OBITER DICTUM that Congress can "punish private conspiracies that interfere with fourteenth amendment rights, such as the right to utilize public facilities." That concept supports provisions of 1968 legislation that make it a federal crime for private individuals to deny others, "because of ? race, color, religion or national origin," their rights to attend public schools or participate in programs provided or administered by the state.

It is less clear whether the holding of the Civil Rights Cases is still valid in denying Congress the power, under section 5 of the Fourteenth Amendment, to control private conduct that is not connected to any relationship between the victim and the states. No Supreme Court decision since Guest has spoken to that question. Because Congress has a wide range of other legislative powers available to it, this abstract question probably will not be answered in the foreseeable future. The CIVIL RIGHTS ACT OF 1964, for example, went further...