The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 1: Introduction
• Supplementary Note On the Introduction
• 2: “privileges Or Immunities”
• Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
• 3: The “privileges Or Immunities of a Citizen of the United States”
• 4: Negro Suffrage Was Excluded
• Supplementary Note On Suffrage
• 5: Reapportionment
• 6: The “open-ended” Phraseology Theory
• 7: Segregated Schools
• Supplementary Note On Segregated Schools
• 8: Incorporation of the Bill of Rights In the Fourteenth Amendment
• Supplementary Note On Incorporation
• 9: Opposition Statements Examined
• 10: “equal Protection of the Laws”
• 11: “due Process of Law”
• 12: Section Five: “congress Shall Enforce”
• 13: Incorporation of Abolitionist Theory In Section One
• Supplementary Note On Abolitionist Influence
• Part Ii
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

12

Section Five: “Congress Shall Enforce”

Section 5 of the Amendment provides that “The Congress shall have power to enforce by appropriate legislation the provisions of this article.” In 1879 the Court declared:

One might read this to mean that the courts are without authority to enforce the Fourteenth Amendment except as Congress empowers them to do so. Nevertheless, Justice Brennan stated in 1970, “we have consistently held that the Amendment grants power to the Court” and brushed the issue aside as “of academic interest only.” 2 It is a fact that the Court has exercised the power, but it has never grappled with the questions posed by the text of §5 and by the 1879 opinion. It is never “academic” to inquire into the constitutional authority for action by any branch of the government. Patently the Court does not derive its power from the text of §5. Whence is it derived? Why did the framers confer the power on Congress rather than the Court?

The preference for Congress over the courts, exhibited by the face of §5, is readily explicable: “Slavery was deeply entrenched in the courts.” 3Dred Scott had been so bitterly etched into abolitionist memory that Senator Sumner even sought to bar the customary memorial, placement of Chief Justice Taney’s bust in the Supreme Court Chamber, and insisted that his name should be “hooted down in the pages of history.” 4 Earlier the fugitive slave decision Prigg v. Pennsylvania5 had incensed the North, and such feelings were exacerbated on the very eve of the Civil War by Ableman v. Booth, where an order of the Supreme Court of Wisconsin setting aside a federal commitment of a fugitive slave was reversed.6 In consequence, Bingham, Stevens, “and others were among the severest critics of the Supreme Court and judicial review . . . [and] viewed it with a profound and ever growing mistrust.” 7 James F. Wilson of Iowa rejected “judicial pronouncements” on the “unity of this Republic.” 8 Not long after congressional approval of the Amendment, Samuel L. Warner, a Connecticut Republican, said he had “learned to place but little reliance upon the dogmas of [the] Court upon any question touching the rights of humanity.” 9

Such statements and sentiments might suggest that the framers intended the §5 grant of enforcement power to be exclusive, an inference apparently drawn by Judge Learned Hand: “Judicial encroachments upon legislative prerogatives in segregation decisions appeared to Hand to be directly contrary to the intent of the Fourteenth Amendment, which gives Congress power to enforce it through appropriate legislation.” 10 Hand could draw on the established canon that the express grant to Congress indicates an intention to withhold the enforcement power from the courts.11

It needs to be noticed that in 1866 the lower federal courts had no general jurisdiction of cases alleging a deprivation of rights secured by the Constitution. Although Article III confers jurisdiction of “cases arising under this Constitution,” it places creation of the “inferior courts” in the discretion of Congress. Consequently, the Supreme Court held, “Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies.” 12 General jurisdiction of such cases, involving so-called “federal questions,” was withheld by Congress from the lower courts until the 1870s.13 Two related factors also require preliminary notice: the existence of the “diversity” jurisdiction of controversies “between citizens of different states,” and of appeals to the Supreme Court from State court denials of rights claimed under the Constitution or laws of the United States.14 But, as the face of the Civil Rights Act discloses, the framers little trusted the State courts to enforce Negro rights;15 and to have insisted that an impoverished black should pursue his rights in the Supreme Court would have reduced judicial enforcement to an empty promise. The diversity jurisdiction of course was virtually useless to almost all blacks, for their oppressors normally would be residents of the same State.

The framers, however, had made express provision in the Civil Rights Act for federal court jurisdiction to enforce the Act. Section 3 gave (1) the district courts jurisdiction, exclusive of State courts, of all crimes and offenses against the Act; and (2) concurrent jurisdiction with the circuit courts of all causes, civil and criminal, affecting persons who are denied or cannot enforce rights secured by §1 in State courts; plus (3) rights of removal of criminal or civil actions against persons whose rights were secured by the Act.16 Nothing in the history of the Amendment suggests an intention to repeal this provision. Instead the question arises: did “incorporation” of the Act in the Amendment carry the enforcement provisions with it? It is unreasonable, however, to attribute to the framers an intention to freeze enforcement provisions—the §2 fine of $1,000, for example—into the Constitution. Such provisions are generally subject to change in the light of experience, and the need to preserve flexibility with respect to penalties counsels against such an interpretation. On established canons of construction an unreasonable interpretation is to be avoided. Then too, there is no reason to attribute to Congress an intention to surrender any part of its Article III control of the “inferior courts” 17 by a grant of untouchable jurisdiction in the Fourteenth Amendment, particularly at a time when Congress distrusted the courts. Such a surrender calls for more than references to “incorporation”; in an analogous situation the Court has required a specific provision for the change.18

In light of the jurisdiction conferred by §3 of the Act, why was there a need for express congressional “power to enforce”? For it is a puzzling fact that the “necessity” of the §5 authorization was stressed. That §5, said George F. Miller of Pennsylvania, “is requisite to enforce the foregoing sections . . . is not contested.” 19 Justice Brennan explained that by “including §5 the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause.” 20 That leaves the tautology to be accounted for. Prigg v. Pennsylvania,21 a cause célèbre, had decided with respect to the Fugitive Slave Act that Congress has implied power to protect a right derived from the Constitution. Of Prigg and the subsequent Ableman v. Booth,22 the abolitionists, we may be sure, were well aware. Practiced lawyers like Senator Reverdy Johnson, Thaddeus Stevens, Judge Robert S. Hale, and Judge William Lawrence would be familiar with those cases, and one hesitates without more to attribute to the framers an intention merely to confirm such judicial interpretations by express constitutional provision. The “necessity” is perhaps better explained by Laurent B. Frantz: Prigg and Ableman gave Congress implied power to protect constitutional rights from interference by private individuals, whereas Kentucky v. Dennison had denied “implied power to exercise any control over a state’s officers and agencies.” 23 Since Dennison held, and Bingham considered, that no branch of the government enjoyed such power over State officers,24 a grant of power to the judiciary arguably was equally “necessary.” No such grant was made in the Amendment. The 1866 congressional grant to the judiciary in the Civil Rights Act was by the Dennison test of dubious constitutionality; it could and can be supplemented by delegation from Congress under its §5 “power to enforce.” Derived from Congress, the judicial enforcement power can be withdrawn by it from the “inferior courts.”

The debates indicate that the framers meant Congress to play the leading role, that they regarded Congress “as the primary organ for the implementation of the guarantees of privileges and immunities, due process, and equal protection.” 25 It was “necessary,” said Senator Poland, that Congress “enforce the provision . . . and compel its observance.” 26 Stevens explained that the Amendment “allows Congress to correct the unjust legislation of the States”; and Charles Fairman observed that “Stevens’ thought ran to political rather than judicial action.” 27 Other framers also looked to Congress to undertake “corrective” action.28 The overtones of such expressions were amplified by Senator Howard: section 5

Some explanation is required why this “responsibility” to “carry out the principles” of the Amendment did not contemplate congressional rather than judicial initiatives. Why did Hotchkiss protest that §5 “proposes to leave it to the caprice of Congress” whether or not to enforce antidiscrimination,30 if it was assumed that the courts could act in the face of congressional inaction? At the outset Conkling stated that all questions “arising upon the construction” of the Amendment would go to the “appropriate forum . . . the forum would be Congress, and also, perhaps the courts.” 31 But §5 made no provision for enforcement by the courts.

Justice Douglas, apparently unaware of the implications of his statement for judicial review, stated that “the manner of enforcement involves discretion; but that discretion is largely entrusted to Congress, not to the courts.” 32 The face of §5 indicates that the “discretion” was entirely confided to Congress, and the debates confirm that the “responsibility” for enforcement was imposed upon Congress, thus confirming the maxim that a direction to act in one mode excludes another.33 Judge Learned Hand’s inference that the grant to Congress was exclusive is strengthened by the legislative history. So far as I could find that history affords no basis for reading into §5 the judicial power of enforcement it so plainly withheld. Minimally the legislative history indicates that where Congress has spoken, that policy ought to be respected.34

A reasoned argument for a judicial power of enforcement of the Fourteenth Amendment—apart from that derived from the grant in the Civil Rights Act of 1866, which Congress is free to withdraw—has yet to be made. Section 5, I would insist, raises questions which go to the heart of judicial enforcement of the Amendment, questions which the Court has never attempted to answer, which have been neglected by scholars, and to which they might well devote further study.

[1.]Ex parte Virginia, 100 U.S. 339, 345 (1879) (emphasis partially added). [During the oral argument on Brown v. Board of Education, Justice Jackson asked, “Isn’t the one thing that is perfectly clear under the Fourteenth Amendment that Congress is given the power and the duty to enforce the Fourteenth Amendment by legislation?” Alexander Bickel, The Supreme Court and the Idea of Progress 6 (1978).]

[2.]Oregon v. Mitchell, 400 U.S. 112, 264n (1970).

[3.]TenBroek 149.

[4.]Donald, Sumner II 193. In the House, Stevens referred to “the infamous sentiment that damned the late Chief Justice to everlasting fame; and I fear, to everlasting fire.” Globe 75. George Bancroft, the historian, stated in a memorial tribute to Lincoln that “The Chief Justice . . . without any necessity or occasion, volunteered to come to the rescue of the theory of slavery.” Globe 801. Almost twenty years later Justice Harlan delivered himself of more severe strictures in the Civil Rights Cases, 109 U.S. 3, 57 (1883), dissenting opinion.

[5.]41 U.S. (16 Pet.) 539 (1842).

[6.]62 U.S. (21 How.) 506 (1858). The pot had been kept boiling by a string of fugitive slave decisions, infra Chapter 14 at notes 25–26.

[7.]Graham 447–448. Courts “had not normally favored abolitionists before the war. There was consequently little inclination to bestow new powers on the judiciary, but rather to lean on an augmented power of Congress.” James 184.

[8.]Globe 2947.

[9.]Fairman, History 271. “The Radicals,” said R. J. Harris, The Quest for Equality 53–54 (1960), “did not trust the judiciary in general and the Supreme Court in particular.” “Radical Republicans sought to deny the postwar court the power to review congressional Reconstruction.” Morton Keller, Affairs of State 73 (1977).

[10.]Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary 138 (1973). Hand stated respecting the desegregation decision, “It is curious that no mention was made of section 5, which offered an escape, from intervening, for it empowers Congress to ‘enforce’ all the preceding sanctions by ‘appropriate legislation.’ The court must have regarded this as only a cumulative corrective, not being disposed to divest itself of that power of review that it has so often exercised and as often disclaimed.” Hand, The Bill of Rights 55 (1962).

[11.]T.I.M.E. v. United States, 359 U.S. 464, 471 (1959); United States v. Arredondo, 31 U.S. (6 Pet.) 691, 725 (1832). The rule was familiar to the Founders. In the First Congress, Egbert Benson said, “it cannot be rationally intended that all offices should be held during good behaviour, because the Constitution has declared one office to be held by this tenure.” 1 Annals of Congress 505; and see Alexander White, id. 517.

[12.]Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850).

[13.]“The Civil Rights Act of 1871 (now 28 U.S.C. §1343) created original jurisdiction in the district courts over actions [t]o redress the deprivation, under color of any State law . . . of any right . . . secured by the Constitution . . . And the Act of March 3, 1875 (now 28 U.S.C. §1331), created general federal question jurisdiction in the district courts. The federal courts ‘ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliance for vindicating every right given by the Constitution, the laws, and treaties of the United States’ [citing Felix Frankfurter and James M. Landis, The Business of the Supreme Court 65 (1928)].” Paul Brest, Processes of Constitutional Decisionmaking: Cases and Materials 1297 (1975).

[14.]Raoul Berger, Congress v. The Supreme Court 274 (1969).

[15.]Infra at note 16.

[16.]Globe App. 316. McKee of Kentucky asked, “Where is your court of justice in any southern State where the black man can secure protection.” Globe 653. See also Senator Lane, supra Chapter 11 at note 30.

[17.]Supra at note 12.

[18.]Pierson v. Ray, 386 U.S. 547, 554–555 (1967); see also supra Chapter 1 note 57.

[19.]Globe 2511. Jehu Baker of Illinois declared that §5 “was of course necessary in order to carry the proposed article into practical effect.” Globe App. 257. See also Senator Poland, Globe 2961. Fairman comments, “Poland, like the rest, contemplated action by Congress and ignored direct enforcement by the courts.” Fairman, History 1296. For a similar comment on Howard, see Fairman, id. 1294.

“Senator Howe, a Radical Republican, went back to Wisconsin and made a major address at Madison on August 10 [1866]; ‘. . . The only effect of the amendment if adopted is to enable the National Legislature . . . to enforce equal justice, when the several States refuse to enforce it.’ ” Fairman, Stanford 73–74, quoting the Chicago Tribune, August 14, 1866.

[20.]Katzenbach v. Morgan, 384 U.S. 641, 650 (1966).

[21.]41 U.S. (16 Pet.) 539, 618–620 (1842). Justice Bradley stated on circuit, “whenever a right is guaranteed by the constitution . . . Congress has the power to provide for its enforcement, either by implication arising from the correlative duty of the government to protect, wherever a right to the citizen is conferred, or under the general power . . . to make all laws necessary and proper for carrying into execution the foregoing powers.” United States v. Cruikshank, 25 F. Cas. (No. 14,897) 707, 709 (C.C.D. La. 1874). He instanced Prigg as an example of the former power.

[22.]Supra note 6.

[23.]“Congressional Power to Enforce the Fourteenth Amendment Against Private Acts,” 73 Yale L.J. 1353, 1357 (1964). Chief Justice Taney held in Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107 (1858), with reference to power to compel a Governor to deliver a fugitive from justice to a sister State, “there is no clause or provision in the Constitution which arms the Government of the United States with this power.”

[24.]Bingham stated that “the continued construction of every department of this Government, legislative, executive and judicial . . . has conceded that no such power [to enforce the rights guaranteed to a citizen “from the beginning” ] is vested in the Federal Government,” and he therefore proposed a grant to Congress. Globe 429; see also Howard, infra at note 29.

[25.]Harris, supra note 9 at 53–54; James 184.

[26.]Globe 2961 (emphasis added). Woodbridge said the Amendment “is intended to enable Congress by its enactments” to give “protection.” Supra Chapter 8 at note 34.

[27.]Globe 2459; Fairman, History 1284. In “Stevens’ mind, it was Congress that was going to correct unjust State legislation.” Fairman, Stanford 44.

[28.]Supra Chapter 10 at notes 73, 75, 79.

[29.]Globe 2766, 2768 (emphasis added). Justice Brennan cites this passage for “congressional responsibility for implementing the Amendment.” Katzenbach v. Morgan, 384 U.S. at 648.

[30.]Globe 1095.

[31.]Id. 358.

[32.]Oregon v. Mitchell, 400 U.S. at 143. Professor Willard Hurst stated, “it is pretty plain that the actual framers thought they were delegating the rulemaking power to Congress.” “The Role of History,” in Supreme Court and Supreme Law 60 (Edmond N. Cahn ed. 1954).

[33.]Supra note 11.

[34.]Thus the Equal Educational Opportunities Act of 1974, 20 U.S.C. § §1701 et seq., undertook to “specify appropriate remedies for the orderly removal of the vestiges of the dual school system” and to establish priorities for the employment of such remedies. 20 U.S.C. §1701(b) and §1713. See also Kelly, supra Chapter 6 note 26.