The Fourteenth Amendment's Enforcement Clause

Congress adopted the Fourteenth Amendment in 1868, following the Civil War. While the Emancipation Proclamation, issued five years prior, abolished slavery, it did not ensure equal rights for the newly emancipated individuals. Congress adopted three amendments during this time, known as the Reconstruction Amendments:

• Thirteenth Amendment (Abolition of slavery)

• Fourteenth Amendment (Equal protection, due process, citizenship)

• Fifteenth Amendment (Voting rights)

The Fourteenth Amendment aimed to ensure that all citizens of the United States enjoyed equal protection of the laws, including the Bill of Rights. It prohibited states from passing laws designed to discriminate against newly freed African Americans. The Fourteenth Amendment contains an enforcement clause, which grants the federal government the power to enforce the clause.

This amendment would be meaningless without the enforcement clause. Without it, states could create laws that disadvantaged the newly freed and threatened to keep them in bondage.

The Enforcement Clause of the Fourteenth Amendment

The Fourteenth Amendment contains several clauses designed to address different issues newly freed African Americans faced after the Civil War ended. The goal was to ensure they enjoyed the same fundamental rights as other American citizens, free from racial discrimination via state action. In other words, the Fourteenth Amendment did not (and does not) apply to private action.

You can find the enforcement clause in Section 5 of the Fourteenth Amendment to the U.S. Constitution. It reads as follows:

"The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

Other Fourteenth Amendment provisions include the following:

• The citizenship clause

• The privileges and immunities clause

• The due process clause

• The equal protection clause

• The disqualification clause

The enforcement clause empowers Congress to implement the 14th Amendment through suitable legislation. Without Congress's authority to enforce constitutional amendments, they would be ineffective. Take, for instance, the Voting Rights Act of 1965, which upholds the Fifteenth Amendment by ensuring the voting rights of African Americans.

Similarly, the Klu Klux Klan Act of 1871, 42 U.S.C. § 1983, is an example of appropriate legislation to enforce Section 5 of the Fourteenth Amendment. During the post-Civil War era, the Klu Klux Klan emerged as a group that terrorized the following groups, mainly in the South:

• African Americans

• Unionists (those who supported the Union of the United States of America)

• Federal officers located in the American South

When it passed, the Act was officially known as "the Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes," which underscores its function.

Interpretation and Application of Section 5 of the Fourteenth Amendment

Although the purpose and intent of the enforcement clause seem clear from the text, we can understand its interpretation and application through several Supreme Court (SCOTUS) decisions. Judicial review is a cornerstone of constitutional law, and the U.S. Supreme Court is the final arbiter in assessing constitutional violations.

Congress eventually abandoned its efforts to secure constitutional rights for the newly freed African Americans. This resulted in a few cases brought under appropriate legislation.

When Congress enacted the Civil Rights Act of 1957, it exercised its powers under the Commerce Clause to combat racial discrimination. This approach persisted until the Supreme Court acknowledged the broad scope of Congress's authority under the Fourteenth Amendment.

Ex-Parte Virginia

One of the first cases to test Congress's power was Ex Parte Virginia. Ex Parte Virginia included three cases where Virginia judges refused to allow African Americans to serve on juries. Their actions were in direct violation of the Civil Rights Act of 1875, which prohibited racial discrimination against African Americans in several aspects of public life. Under this law, it was unlawful to discriminate against anyone by denying them access to:

• Public accommodations

• Public schools

• Public theatres

• Churches

• Cemeteries

The Act also prohibited state governments from passing laws banning anyone from jury service based on race. The State of Virginia, however, believed that the federal government lacked the authority to tell them what to do.

The Supreme Court disagreed. They held that the Fourteenth Amendment gave Congress the power to regulate state actions regarding juries. In the Court's view, this was a constitutional use of Congress's enforcement power.

Several years later, the Court deemed parts of the Civil Rights Act of 1875 unconstitutional. The Act was determined to target private rather than state actions. The Civil Rights Cases of 1883 saw the Court consolidating five separate cases.

Each case dealt with the Civil Rights Act of 1875, which prohibited racial discrimination on private property. The Court determined that this application of Congress's enforcement powers was unconstitutional. They noted that the Fourteenth Amendment only applied to state actions, not private ones.

United States v. Guest

The next major case testing Congressional enforcement power under the Fourteenth Amendment is U.S. v. Guest.  In Guest, a group of white men killed Lemuel Penn, an African American man driving out of Georgia with two friends. As justification for their actions, the killers falsely claimed that Penn and his friends had committed a crime. An all-white jury eventually acquitted them.

The federal government subsequently indicted them under 18 U.S.C. § 241 for conspiring to deprive Penn of his constitutional rights based on his skin color. This federal law prohibits two or more persons from agreeing to harm or intimidate anyone from exercising their constitutional rights freely.

The defendants successfully petitioned for the dismissal of the indictment in federal court; however, the Supreme Court overturned this decision. The Court held that any state involvement in a conspiracy under §241 violates the Fourteenth Amendment. In the case of Guest, the state actors in question were the police officers who acted on false accusations.

In his concurrence, Justice Brennan reached the same conclusion but for different reasons. He notes:

"I believe that §241 reaches such a private conspiracy, not because the 14th Amendment of its own force prohibits such a conspiracy, but because §241, as an exercise of congressional power under §5 of that Amendment, prohibits all conspiracies to interfere with the exercise of a 'right (secured) by the Constitution.'"

United States v. Morrison

However, the Court reached a different conclusion in United States v. Morrison, a 2000 case that involved the Violence Against Women Act of 1994 (VAWA). Congress established a federal civil remedy for acts of sexual violence against women under Section 13981 of the VAWA.

After a Virginia Tech student leveled allegations of sexual violence against two male students, the State of Virginia refused to charge the alleged perpetrators. The student sued in federal court. The local U.S. District Court held that Congress lacked the power to enact this section of the Violence Against Women Act.

The Fourth Circuit Court of Appeals reversed and reinstated the District Court's decision. SCOTUS also upheld the District Court's decision. Chief Justice Rehnquist delivered the majority opinion. The Court held that Congress lacked authority under the Commerce Clause and the Fourteenth Amendment to pass Section 13981.

Katzenbach v. Morgan

Katzenbach v. Morgan is a landmark case that further helps us understand Congressional enforcement power. Congress passed the Voting Rights Act of 1965 (V.R.A. of 1964), which expressly prohibited literacy tests in Section 4(e). At that time, New York State had election laws that banned anyone who didn't read or write English from voting.

The State sued, seeking a declaratory judgment that exceeded its constitutional authority in enacting this section. Although the local District Court agreed with New York State, SCOTUS ultimately disagreed. SCOTUS held that this section was an appropriate exercise of Congress's power under Section 5 of the Fourteenth Amendment.

City of Boerne v. Flores

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA). This Act prohibited any federal or State agency from substantially burdening a person's free exercise of religion. The Act also allowed the federal and State governments to burden a person's exercise of religion if the government could demonstrate that the application of such a burden furthered a compelling government interest and was the least restrictive means of doing so.

City of Boerne v. Flores arose from San Antonio, Texas, where the local city council declined a church's application for a permit to expand their property. The city wanted to preserve its historic district.

The Archbishop of San Antonio sued the city, arguing that the denial violated RFRA. The local district court found in favor of the City of Boerne, and the Fifth Circuit Court of Appeals reversed that decision.

The Supreme Court held that RFRA was an unconstitutional use of Congressional power under Section 5 of the Fourteenth Amendment.

Shelby County v. Holder

Congress passed the Voting Rights Act of 1965 to address racial discrimination in voting. Many Southern state legislatures had passed state laws designed to disenfranchise Black voters. The Voting Rights Act of 1965 aimed to ensure all Americans enjoyed the unhindered right to vote.

Under Section 5 of this Act, certain Southern states had to get pre-clearance of any new voting laws. Although originally enacted for five years, until Shelby v. Holder, Congress renewed Section 5 every five years.

Shelby County, Alabama, was a jurisdiction subject to pre-clearance. It sued the federal government, seeking a declaration that Section 5 was not constitutional. They also sought a permanent injunction against enforcing Section 4(b) and Section 5.

The District Court for the District of Columbia upheld Section 5's constitutionality, and the Court of Appeals for the District of Columbia agreed. These lower courts determined that Section 5 did not exceed Congress's power under the Fourteenth and Fifteenth Amendments.

SCOTUS held that Congress had overstepped its authority under these Amendments. Justice Ruth Ginsburg dissented, acknowledging that Congress's enforcement powers under these Amendments encompassed suitable legislation such as the Voting Rights Act of 1965.

Section 5 and Civil Rights

Section 5's role in securing civil rights for all American citizens is undeniable. It is the foundation for almost every major civil rights legislation. Based on federal laws, legislation, and cases, we can conclude that Congress understood its role in protecting American citizens from racial discrimination. Congress knew that just passing legislation was insufficient without the means to enforce it.

The Thirteenth, Fourteenth, and Fifteenth Amendments (the Reconstruction Amendments) were bold for their time, but they endure today.