The McCulloch theory of the Fourteenth Amendment: City of Boerne v. Flores and the original understanding of section 5.

• Author: Engel, Steven A.

1. INTRODUCTION

   Twentieth-century eyes have long read the Fourteenth Amendment as though it were addressed to the judiciary. The historical fact that the Supreme Court, and not Congress, has taken the lead in defining our constitutional liberties has left lawyers looking to the courts to fulfill the promises that lie at the amendment's core. Whether the amendment prevents a state from operating race-segregated schools, proscribing adult sexual activity, or sponsoring affirmative action has been seen first and often exclusively as a question for the courts. Constitutional scholars have likewise embraced such a judicial reading in their longstanding debate over whether the Fourteenth Amendment incorporates the Bill of Rights.(1) Academics have searched for the original intent of the amendment's Framers, all the while sharing the assumption that such a theory of judicial interpretation would lead to a satisfactory conclusion.

   City of Boerne v. Flores(2) adopted the judicial reading in striking down Congress's attempt to provide its own content to the open guarantees of the amendment. In 1993, Congress passed the Religious Freedom Restoration Act (RFRA)(3) with the almost unanimous support of both houses,(4) employing its own power to enforce the Fourteenth Amendment to protect religious liberty against state infringement.(5) The act took aim at the Supreme Court's decision in Employment Division v. Smith,(6) which had read the First Amendment to provide no free exercise exemption from neutral laws of general applicability.(7) By restoring the balancing test that the Court had employed prior to Smith,(8) Congress asserted an independent authority to interpret the Fourteenth Amendment.(9) If the legislature determined that state action threatened the liberty interests guaranteed by the Fourteenth Amendment, it could enact laws to protect that right---even if the Supreme Court had decided the Fourteenth Amendment would not compel such a reading. The Boerne Court rejected that interpretation of the Fourteenth Amendment, finding that "[l]egislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause."(10) The Court examined the legislative debates on the amendment and found that the Framers understood Congress's power to be "remedial," limited to implementing legislation that directly or indirectly enforced judicially defined rights against state interference.(11) To allow Congress to enforce an interpretation different from that of the judiciary would be to grant the legislature the substantive power to define constitutional meaning. As RFRA did not seek to protect such a judicially defined right, it went beyond Congress's power under the Fourteenth Amendment and, as such, reflected an impermissible attempt by the national government to regulate the states.

   The problem with Boerne is not simply that it misread the ratification history but that it ignored the broader context that gave meaning to those debates. This Note argues that the Boerne Court, like many modern constitutional scholars, went astray in focusing upon the judicial branch as the ultimate interpreter of the Fourteenth Amendment.(12) While the Court may retain the last word, the judicial reading obscures the Framers' conviction that it would be Congress, and not the courts, that would be the first reader, and primary enforcer, of the Fourteenth Amendment. The amendment speaks in open generalities not because the Framers naively believed the judiciary might ascertain a definite meaning behind those words, but because they were interested in granting to the national government broad discretion to protect civil liberties against state infringement. Rather than seeking to codify a definite set of rights, the Framers undertook to grant future Congresses the discretion to protect civil liberties, as they might understand them, against state infringement.(13)

   This Note revisits the legislative reading of the Fourteenth Amendment by articulating the theory of legislative discretion implicit within the text of the amendment. The Framers of the amendment, as well as judges and commentators of the era, expected courts to review acts of Congress under the deferential standard laid out by Chief Justice Marshall in McCulloch v. Maryland.(14) The amendment grants Congress the power to enforce its provisions by "appropriate" legislation, a word that called to their minds the Chief Justice's canonical opinion. In upholding Congress's power to charter a national bank, Marshall laid out the text through which nineteenth-century courts would review the constitutionality of an act of Congress: "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."(15) Congressmen, judges, and legal commentators regularly drew on these words--often verbatim--as setting the standard by which courts would review an act of Congress.(16) In drafting Section 5 of the Fourteenth Amendment, the Republicans borrowed explicitly from McCulloch in granting Congress the power to enforce the provisions of the amendment by appropriate legislation.(17)

   Under the McCulloch standard, Congress enjoyed interpretive discretion that extended not only to the means but also to the constitutional ends themselves. Modern commentators have read John Marshall's reminder that "it is a constitution we are expounding"(18) as a warrant for judicial license.(19) However, in McCulloch, those words licensed not judicial freedom, but judicial deference to the plausible interpretive acts of Congress. To take McCulloch seriously is to understand why the Supreme Court, after Marbury v. Madison,(20) struck down only one other act of Congress prior to the Civil War.(21) In contrast to Boerne's neat but implausible distinction between the power to remedy and the power to define constitutional violations, McCulloch recognized that congressional legislation would inevitably shape constitutional meaning.

   The McCulloch theory rests upon three propositions. First, a constitution designates only the broad outlines of its important objects.(22) Second, the public welfare requires Congress to have wide latitude in choosing the means by which it is to pursue such objects.(23) And third, a court will only strike down an act of Congress if there is a clear opposition between the constitutional text and the law.(24) If these principles are accepted, then Boerne's claim that Congress has no independent discretion in reading the text cannot be correct. Where the Constitution's text speaks in terms of broad principles, Congress may legislate under those broad terms. And a court may deny that action only when the law cannot be reconciled with the constitutional text. Under McCulloch, Congress's discretion goes well beyond the mere ability to select the means to judicially defined ends. At least that is what the Framers of the Fourteenth Amendment understood McCulloch to mean.

   The Reconstruction Congress demonstrated its understanding in enacting the Civil Rights Act of 1866, just weeks before it considered Section 5. The Enforcement Clause of the Thirteenth Amendment--the textual predecessor of Section 5--granted Congress the power to enforce the amendment's substantive guarantees against slavery by "appropriate legislation."(25) The substance of the amendment prohibited slavery, yet under the Enforcement Clause the Republicans claimed the authority to enact the Civil Rights Act, which protected against state infringement a range of civil liberties, such as the rights of contract and property and the right to sue in court. To justify such power, congressional Republicans invoked "the celebrated case of McCulloch vs. The State of Maryland" as allowing Congress to read the amendment not simply to prohibit slavery, but to guarantee the "maintenance of freedom to the citizen."(26) The legislators who passed the Civil Rights Act introduced this same view into the Fourteenth Amendment.(27) They recognized that the privileges and immunities "are not and cannot be fully defined in their entire extent and precise nature," yet the Republicans would rely upon Congress's power "to pass laws which are appropriate to the attainment of the great object of the amendment."(28) So long as Congress pursued an end plausibly within the Constitution, and did so by means not prohibited, the Court would sustain legislative interpretations of the act.

   The Reconstruction Court invoked this tradition in interpreting Congress's power under Section 5 of the Fourteenth Amendment. In its first construction of that clause, in Ex parte Virginia,(29) the Court described Congress's power in words that tracked McCulloch: "Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain ... if not prohibited, is brought within the domain of congressional power."(30) Although that language lay dormant for nearly a century, the Court of the civil rights era revived it during the voting rights cases of the 1960s, according Congress substantial discretion to go beyond the Court's reading of the Civil War amendments in order to protect civil liberties.(31) The Boerne Court itself honored the McCulloch reading, quoting Ex parte Virginia(32) at the beginning of its inquiry and devoting a section of the opinion to affirming its consonance with the voting rights precedents.(33) But the Court honored McCulloch more in the breach than in the observance. While McCulloch may remain in name the standard by which the Court reviews congressional acts under the Fourteenth Amendment, Boerne's holding casts the law away from those constitutional moorings.

   Although numerous modern commentators have recognized McCulloch as the...