SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.



In the aftermath of the Civil War, Congress, in addition to proposing to the states the Thirteenth, Fourteenth, and Fifteenth Amendments, enacted seven statutes designed in a variety of ways to implement the provisions of these Amendments.2193 Several of these laws were general civil rights statutes that broadly attacked racial and other discrimination on the part of private individuals and groups as well as by the states, but the Supreme Court declared unconstitutional or rendered ineffective practically all of these laws over the course of several years.2194 In the end, Reconstruction was abandoned and with rare exceptions no cases were brought under the remaining statutes until fairly recently.2195 Beginning with the Civil Rights Act of 1957, however, Congress generally acted pursuant to its powers under the Commerce Clause2196 until Supreme Court decisions indicated an expansive concept of congressional power under the Civil War amendments,2197 which culminated in broad provisions against private interference with civil rights in the 1968 legislation.2198 The story of these years is largely an account of the “state action” doctrine in terms of its limitation on congressional powers;2199 lately, it is the still-unfolding history of the lessening of the doctrine combined with a judicial vesting of discretion in Congress to reinterpret the scope and content of the rights guaranteed in these three constitutional amendments.

State Action

In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress has the discretion to adopt remedial measures, such as authorizing persons being denied their civil rights in state courts to remove their cases to federal courts,2200 and to provide criminal2201 and civil2202 liability for state officials and agents2203 or persons associated with them2204 who violate protected rights. These statutory measures designed to eliminate discrimination “under color of law”2205 present no problems of constitutional foundation, although there may well be other problems of application.2206 But the Reconstruction Congresses did not stop with statutory implementation of rights guaranteed against state infringement, moving as well against private interference.

Thus, in the Civil Rights Act of 18752207 Congress had proscribed private racial discrimination in the admission to and use of inns, public conveyances, theaters, and other places of public amusement. The Civil Rights Cases2208 found this enactment to be beyond Congress’s power to enforce the Fourteenth Amendment. The Court observed that § 1 prohibited only state action and did not reach private conduct. Therefore, Congress’s power under § 5 to enforce § 1 by appropriate legislation was held to be similarly limited. “It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment.”2209 The holding in this case had already been preceded by United States v. Cruikshank2210 and by United States v. Harris2211 in which the Federal Government had prosecuted individuals for killing and injuring African-Americans. The Amendment did not increase the power of the Federal Government vis-a-vis individuals, the Court held, only with regard to the states themselves.2212

Cruikshank did, however, recognize a small category of federal rights that Congress could protect against private deprivation, rights that the Court viewed as deriving particularly from one’s status as a citizen of the United States and that Congress had a general police power to protect.2213 These rights included the right to vote in federal elections, general and primary,2214 the right to federal protection while in the custody of federal officers,2215 and the right to inform federal officials of violations of federal law.2216 The right of interstate travel is a basic right derived from the Federal Constitution, which Congress may protect.2217 In United States v. Williams,2218 in the context of state action, the Court divided fourtofour over whether the predecessor of 18 U. S. C. § 241 in its reference to a “right or privilege secured . . . by the Constitution or laws of the United States” encompassed rights guaranteed by the Fourteenth Amendment, or was restricted to those rights “which Congress can beyond doubt constitutionally secure against interference by private individuals.” This issue was again reached in United States v. Price2219 and United States v. Guest,2220 again in the context of state action, in which the Court concluded that the statute included within its scope rights guaranteed by the Due Process and Equal Protection Clauses.

Because the Court found that both Price and Guest concerned sufficient state action, it did not then have to reach the question of § 241‘s constitutionality when applied to private action that interfered with rights not the subject of a general police power. But Justice Brennan, responding to what he apparently intepreted as language in the Court’s opinion construing Congress’s power under § 5 of the Fourteenth Amendment to be limited by the state action requirement, appended a lengthy statement, which a majority of the Justices joined, arguing that Congress’s power was broader.2221 “Although the Fourteenth Amendment itself . . . ‘speaks to the State or to those acting under the color of its authority,’ legislation protecting rights created by that Amendment, such as the right to equal utilization of state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, § 5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is necessary to its full protection.”2222 The Justice throughout the opinion refers to “Fourteenth Amendment rights,” by which he meant rights that, in the words of 18 U. S. C. § 241, are “secured . . . by the Constitution,” i. e., by the Fourteenth Amendment through prohibitory words addressed only to governmental officers. Thus, the Equal Protection Clause commands that all “public facilities owned or operated by or on behalf of the State,” be available equally to all persons; that access is a right granted by the Constitution, and § 5 is viewed “as a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens.” Within this discretion is the “power to determine that in order adequately to protect the right to equal utilization of state facilities, it is also appropriate to punish other individuals” who would deny such access.2223

The Court, however, ultimately rejected this expansion of the powers of Congress in United States v. Morrison.2224 In Morrison, the Court invalidated a provision of the Violence Against Women Act2225 that established a federal civil remedy for victims of gender-motivated violence. The case involved a university student who brought a civil action against other students who allegedly raped her. The argument was made that there was a pervasive bias against victims of gender-motivated violence in state justice systems, and that the federal remedy would offset and deter this bias. The Court first reaffirmed the state action requirement for legislation passed under the Fourteenth Amendment,2226 dismissing the dicta in Guest, and reaffirming the precedents of the Civil Rights Cases and United States v. Harris. The Court also rejected the assertion that the legislation was “corrective” of bias in the courts, as the suits are not directed at the state or any state actor, but rather at the individuals committing the criminal acts.2227

Congressional Definition of Fourteenth Amendment Rights

In the Civil Rights Cases,2228 the Court observed that “the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation,” that is, laws to counteract and overrule those state laws that § 1 forbids the states to adopt. The Court was quite clear that, under its responsibilities of judicial review, it was the body that would determine that a state law was impermissible and that a federal law passed pursuant to § 5 was necessary and proper to enforce § 1.2229 But, in United States v. Guest,2230 Justice Brennan protested that this view “attributes a far too limited objective to the Amendment’s sponsors,” that in fact “the primary purpose of the Amendment was to augment the power of Congress, not the judiciary.”

In Katzenbach v. Morgan,2231 Justice Brennan, this time speaking for the Court, in effect overrode the limiting view and posited a doctrine by which Congress was to define the substance of what the legislation enacted pursuant to § 5 must be appropriate to. That is, in upholding the constitutionality of a provision of the Voting Rights Act of 19652232 barring the application of English literacy requirements to a certain class of voters, the Court rejected a state argument “that an exercise of congressional power under § 5 . . . that prohibits the enforcement of a state law can only be sustained if the judicial branch determines that the state law is prohibited by the provisions of the Amendment that Congress sought to enforce.”2233 Because the Court had previously upheld an English literacy requirement under equal protection challenge,2234 acceptance of the argument would have doomed the federal law. But, said Justice Brennan, Congress itself might have questioned the justifications put forward by the state in defense of its law and might have concluded that, instead of being supported by acceptable reasons, the requirements were unrelated to those justifications and discriminatory in intent and effect. The Court would not evaluate the competing considerations that might have led Congress to its conclusion; because Congress “brought a specially informed legislative competence” to an appraisal of voting requirements, “it was Congress’s prerogative to weigh” the considerations and the Court would sustain the conclusion if “we perceive a basis upon which Congress might predicate a judgment” that the requirements constituted invidious discrimination.2235

In dissent, Justice Harlan protested that “[i]n effect the Court reads § 5 of the Fourteenth Amendment as giving Congress the power to define the substantive scope of the Amendment. If that indeed be the true reach of § 5, then I do not see why Congress should not be able as well to exercise its § 5 ‘discretion’ by enacting statutes so as in effect to dilute equal protection and due process decisions of this Court.”2236 Justice Brennan rejected this reasoning: “We emphasize that Congress’s power under § 5 is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.”2237 Congress responded, however, in both fashions. On the one hand, in the 1968 Civil Rights Act it relied on Morgan in expanding federal powers to deal with private violence that is racially motivated, and to some degree in outlawing most private housing discrimination;2238 on the other hand, it enacted provisions of law purporting to overrule the Court’s expansion of the self-incrimination and righttocounsel clauses of the Bill of Rights, expressly invoking Morgan.2239

Congress’s power under Morgan returned to the Court’s consideration when several states challenged congressional legislation2240 lowering the voting age in all elections to 18 and prescribing residency and absentee voting requirements for the conduct of presidential elections. In upholding the latter provision and in dividing over the former, the Court revealed that Morgan’s vitality was in some considerable doubt, at least with regard to the reach that many observers had previously seen.2241 Four Justices accepted Morgan in full,2242 while one Justice rejected it totally2243 and another would have limited it to racial cases.2244 The other three Justices seemingly restricted Morgan to its alternate rationale in passing on the age reduction provision but the manner in which they dealt with the residency and absentee voting provision afforded Congress some degree of discretion in making substantive decisions about what state action is discriminatory above and beyond the judicial view of the matter.2245

More recent decisions read broadly Congress’s power to make determinations that appear to be substantive decisions with respect to constitutional violations.2246 Acting under both the Fourteenth and Fifteenth Amendments, Congress has acted to reach state electoral practices that “result” in diluting the voting power of minorities, although the Court apparently requires that it be shown that electoral procedures must have been created or maintained with a discriminatory animus before they may be invalidated under the two Amendments.2247 Moreover, movements have been initiated in Congress by opponents of certain of the Court’s decisions, notably the abortion rulings, to use § 5 powers to curtail the rights the Court has derived from the Due Process Clause and other provisions of the Constitution.2248

City of Boerne v. Flores,2249 however, illustrates that the Court will not always defer to Congress’s determination as to what legislation is appropriate to “enforce” the provisions of the Fourteenth Amendment. In Flores, the Court held that the Religious Freedom Restoration Act,2250 which expressly overturned the Court’s narrowing of religious protections under Employment Division v. Smith,2251 exceeded congressional power under § 5 of the Fourteenth Amendment. Although the Court allowed that Congress’s power to legislate to deter or remedy constitutional violations may include prohibitions on conduct that is not itself unconstitutional, the Court also held that there must be “a congruence and proportionality” between the means adopted and the injury to be remedied.2252 Unlike the pervasive suppression of the African-American vote in the South that led to the passage of the Voting Rights Act, there was no similar history of religious persecution constituting an “egregious predicate” for the far-reaching provision of the Religious Freedom Restoration Act. Also, unlike the Voting Rights Act, the Religious Freedom Restoration Act contained no geographic restrictions or termination dates.2253

A reinvigorated Eleventh Amendment jurisprudence has led to a spate of decisions applying the principles the Court set forth in Boerne, as litigants precluded from arguing that a state’s sovereign immunity has been abrogated under Article I congressional powers2254 seek alternative legislative authority in § 5. For instance, in Florida Prepaid Postsecondary Educ. Expense Board v. College Savings Bank,2255 a bank that had patented a financial method designed to guarantee investors sufficient funds to cover the costs of college tuition sued the State of Florida for administering a similar program, arguing that the state’s sovereign immunity had been abrogated by Congress in exercise of its Fourteenth Amendment enforcement power. The Court, however, held that application of the federal patent law to the states was not properly tailored to remedy or prevent due process violations. The Court noted that Congress had identified no pattern of patent infringement by the states, nor a systematic denial of state remedy for such violations such as would constitute a deprivation of property without due process.2256

A similar result was reached regarding the application of the Age Discrimination in Employment Act to state agencies in Kimel v. Florida Bd. of Regents.2257 In determining that the Act did not meet the “congruence and proportionality” test, the Court focused not just on whether state agencies had engaged in age discrimination, but on whether states had engaged in unconstitutional age discrimination. This was a particularly difficult test to meet, as the Court has generally rejected constitutional challenges to age discrimination by states, finding that there is a rational basis for states to use age as a proxy for other qualities, abilities and characteristics.2258 Noting the lack of a sufficient legislative record establishing broad and unconstitutional state discrimination based on age, the Court found that the ADEA, as applied to the states, was “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to or designed to prevent unconstitutional behavior.”2259

Despite what was considered by many to be a better developed legislative record, the Court in Board of Trustees of Univ. of Ala. v. Garrett2260 also rejected the recovery of money damages against states, this time under of the Americans with Disabilities Act of 1990 (ADA).2261 Title I of the ADA prohibits employers, including states, from “discriminating against a qualified individual with a disability”2262 and requires employers to “make reasonable accommodations [for] . . . physical or mental limitations . . . . unless [to do so] . . . would impose an undue hardship on the . . . business.”2263 Although the Court had previously overturned discriminatory legislative classifications based on disability in City of Cleburne v. Cleburne Living Center,2264 the Court had held that determinations of when states had violated the Equal Protection Clause in such cases were to be made under the relatively deferential standard of rational basis review. Thus, failure of an employer to provide the kind “reasonable accommodations” required under the ADA would not generally rise to the level of a violation of the Fourteenth Amendment, and instances of such failures did not qualify as a “history and pattern of unconstitutional employment discrimination.”2265 Thus, according the Court, not only did the legislative history developed by the Congress not establish a pattern of unconstitutional discrimination against the disabled by states,2266 but the requirements of the ADA would be out of proportion to the alleged offenses.

The Court’s more recent decisions in this area, however, seem to de-emphasize the need for a substantial legislative record when the class being discriminated against is protected by heightened scrutiny of the government’s action. In Nevada Department of Human Resources v. Hibbs,2267 the Court considered the recovery of monetary damages against states under the Family and Medical Leave Act. This Act provides, among other things, that both male and female employees may take up to twelve weeks of unpaid “family care” leave to care for a close relative with a serious health condition. Noting that § 5 could be used to justify prophylactic legislation, the Court accepted the argument that the Act was intended to prevent gender-based discrimination in the workplace tracing to the historic stereotype that women are the primary caregivers. Congress had documented historical instances of discrimination against women by state governments, and had found that women were provided maternity leave more often than were men.

Although there was a relative absence of proof that states were still engaged in wholesale gender discrimination in employment, the Court distinguished Garrett and Kimel, which had held Congress to a high standard for justifying legislation attempting to remedy classifications subject only to rational basis review. “Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rational basis test . . . it was easier for Congress to show a pattern of state constitutional violations.”2268 Consequently, the Court upheld an acrosstheboard, routine employment benefit for all eligible employees as a congruent and proportional response to the “state-sanctioned” gender stereotypes.

Nine years after Hibbs, the Court returned to the Family and Medical Leave Act, this time to consider the Act’s “self care” (personal medical) leave provisions. There, in Coleman v. Court of Appeals of Md., a four-Justice plurality, joined by concurring Justice Scalia, found the self care provisions too attenuated from the gender protective roots of the family care provisions to merit heightened consideration.2269 According to the plurality, the self care provisions were intended to ameliorate discrimination based on illness, not sex. The plurality observed that paid sick leave and disability protection were almost universally available to state employees without intended or incidental gender bias. The addition of unpaid self care leave to this state benefit might help some women suffering pregnancy related illness, but the establishment of a broad self care leave program under the FMLA was not a proportional or congruent remedy to protect any constitutionally based right under the circumstances.2270

The Court in Tennessee v. Lane2271 held that Congress could authorize damage suits against a state for failing to provide disabled persons physical access to its courts. Title II of the Americans with Disabilities Act provides that no qualified person shall be excluded or denied the benefits of a public program by reason of a disability,2272 but since disability is not a suspect class, the application of Title II against states would seem questionable under the reasoning of Garrett.2273 Here, however, the Court evaluated the case as a limit on access to court proceedings, which, in some instances, has been held to be a fundamental right subject to heightened scrutiny under the Due Process Clause.2274

Reviewing the legislative history of the ADA, the Court found that Title II, as applied, was a congruent and proportional response to a Congressional finding of “a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.”2275 However, as Justice Rehnquist pointed out in dissent, the deprivations the majority relied on were not limited to instances of imposing unconstitutional deprivations of court access to disabled persons.2276 Rather, in an indication of a more robust approach where protection of fundamental rights is at issue, the majority also relied more broadly on a history of state limitations on the rights of the disabled in areas such as marriage or voting, and on limitations of access to public services beyond the use of courts.2277

Congress’s authority under § 5 of the Fourteenth Amendment to abrogate states’ Eleventh Amendment immunity is strongest when a state’s conduct at issue in a case is alleged to have actually violated a constitutional right. In United States v. Georgia,2278 a disabled state prison inmate who used a wheelchair for mobility alleged that his treatment by the State of Georgia and the conditions of his confinement violated, among other things, Title II of the ADA and the Eighth Amendment (as incorporated by the Fourteenth Amendment). A unanimous Court found that, to the extent that the prisoner’s claims under Title II for money damages were based on conduct that independently violated the provisions of the Fourteenth Amendment, they could be applied against the state. In doing so, the Court declined to apply the congruent and proportional response test, distinguishing the cases applying that standard (discussed above) as not generally involving allegations of direct constitutional violations.2279

2193 Civil Rights Act of 1866, ch. 31, 14 Stat. 27; the Enforcement Act of 1870, ch. 114, 16 Stat. 140; Act of February 28, 1871, ch. 99, 16 Stat. 433; the Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13; Civil Rights Act of 1875; 18 Stat. 335. The modern provisions surviving of these statutes are 18 U.S.C. §§ 241, 242, 42 U.S.C. §§ 1981–83, 1985–1986, and 28 U.S.C. § 1343. Two lesser statutes were the Slave Kidnaping Act of 1866, ch. 86, 14 Stat. 50, and the Peonage Abolition Act, ch. 187, 14 Stat. 546, 18 U.S.C. §§ 1581–88, and 42 U.S.C. § 1994.

2194 See generally R. Carr, Federal Protection Of Civil Rights: Quest For A Sword (1947).

2195 For cases under 18 U.S.C. §§ 241 and 242 in their previous codifications, see United States v. Mosley, 238 U.S. 383 (1915); United States v. Gradwell, 243 U.S. 476 (1917); United States v. Bathgate, 246 U.S. 220 (1918); United States v. Wheeler, 254 U.S. 281 (1920). The resurgence of the use of these statutes began with United States v. Classic, 313 U.S. 299 (1941), and Screws v. United States, 325 U.S. 91 (1945).

2196 The 1957 and 1960 Acts primarily concerned voting; the public accommodations provisions of the 1964 Act and the housing provisions of the 1968 Act were premised on the commerce power.

2197 United States v. Guest, 383 U.S. 745 (1966); Katzenbach v. Morgan, 384 U.S. 641 (1966). The development of congressional enforcement powers in these cases was paralleled by a similar expansion of the enforcement powers of Congress with regard to the Thirteenth Amendment, Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). South Carolina v. Katzenbach, 383 U.S. 301 (1966).

2198 82 Stat. 73, 18 U.S.C. § 245.

2199 On the “state action” doctrine in the context of the direct application of § 1 of the Fourteenth Amendment, see discussion, supra.

2200 Section 3 of the Civil Rights Act of 1866, 14 Stat. 27, 28 U.S.C. § 1443. See Virginia v. Rives, 100 U.S. 313, 318 (1880); Strauder v. West Virginia, 100 U.S. 303 (1880). The statute is of limited utility because of the interpretation placed on it almost from the beginning. Compare Georgia v. Rachel, 384 U.S. 780 (1966), with City of Greenwood v. Peacock, 384 U.S. 808 (1966).

2201 18 U.S.C. §§ 241, 242. See Screws v. United States, 325 U.S. 91 (1945); Williams v. United States, 341 U.S. 97 (1951); United States v. Guest, 383 U.S. 745 (1966); United States v. Price, 383 U.S. 787 (1966); United States v. Johnson, 390 U.S. 563 (1968).

2202 42 U.S.C. § 1983. See Monroe v. Pape, 365 U.S. 167 (1961); see also 42 U.S.C. § 1985(3), construed in Griffin v. Breckenridge, 403 U.S. 88 (1971).

2203 Ex parte Virginia, 100 U.S. 339 (1880).

2204 United States v. Price, 383 U.S. 787 (1966).

2205 Both 18 U.S.C. § 242 and 42 U.S.C. § 1983 contain language restricting application to deprivations under color of state law, whereas 18 U.S.C. § 241 lacks such language. The newest statute, 18 U.S.C. § 245, contains, of course, no such language. On the meaning of “custom” as used in the “under color of” phrase, see Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

2206 E.g., the problem of “specific intent” in Screws v. United States, 325 U.S. 91 (1945), and Williams v. United States, 341 U.S. 97 (1951), and the problem of what “right or privilege” is “secured” to a person by the Constitution and laws of the United States, which divided the Court in United States v. Williams, 341 U.S. 70 (1951), and which was resolved in United States v. Price, 383 U.S. 787 (1966).

2207 18 Stat. 335, §§ 1, 2.

2208 109 U.S. 3 (1883). The Court also rejected the Thirteenth Amendment foundation for the statute, a foundation revived by Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).

2209 109 U.S. at 11. Justice Harlan’s dissent reasoned that Congress had the power to protect rights secured by the Fourteenth Amendment against invasion by both state and private action, but also viewed places of public accommodation as serving a quasi-public function that satisfied the state action requirement in any event. Id. at 46–48, 56–57.

2210 92 U.S. 542 (1876). The action was pursuant to § 6 of the 1870 Enforcement Act, ch. 114, 16 Stat. 140, the predecessor of 18 U.S.C. § 241.

2211 106 U.S. 629 (1883). The case held unconstitutional a provision of § 2 of the 1871 Act, ch. 22, 17 Stat. 13.

2212 See also Baldwin v. Franks, 120 U.S. 678 (1887); Hodges v. United States, 203 U.S. 1 (1906); United States v. Wheeler, 254 U.S. 281 (1920). Under the Fifteenth Amendment, see James v. Bowman, 190 U.S. 127 (1903).

2213 United States v. Cruikshank, 92 U.S. 542, 552–53, 556 (1876). The rights that the Court assumed the United States could protect against private interference were the right to petition Congress for a redress of grievances and the right to vote free of interference on racial grounds in a federal election.

2214 Ex parte Yarbrough , 110 U.S. 651 (1884); United States v. Classic, 313 U.S. 299 (1941).

2215 Logan v. United States, 144 U.S. 263 (1892).

2216 In re Quarles and Butler, 158 U.S. 532 (1895). See also United States v. Waddell, 112 U.S. 76 (1884) (right to homestead).

2217 United States v. Guest, 383 U.S. 745 (1966); Griffin v. Breckenridge, 403 U.S. 88 (1971).

2218 341 U.S. 70 (1951).

2219 383 U.S. 787 (1966) (due process clause).

2220 383 U.S. 745 (1966) (Equal Protection Clause).

2221 Justice Brennan’s opinion, 383 U.S. at 774, was joined by Chief Justice Warren and Justice Douglas. His statement that “[a] majority of the members of the Court expresses the view today that § 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy,” id. at 782 (emphasis by the Justice), was based upon the language of Justice Clark, joined by Justices Black and Fortas, id. at 761, that, because Justice Brennan had reached the issue, the three Justices were also of the view “that there now can be no doubt that the specific language of § 5 empowers the Congress to enact laws punishing all conspiracies—with or without state action— that interfere with Fourteenth Amendment rights.” Id. at 762. In the opinion of the Court, Justice Stewart disclaimed any intention of speaking of Congress’s power under § 5. Id. at 755.

2222 383 U.S. at 782.

2223 383 U.S. at 777–79, 784.

2224 529 U.S. 598 (2000).

2225 Pub. L. 103–322, § 40302, 108 Stat. 1941, 42 U.S.C. § 13981.

2226 529 U.S. at 621 (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948), for the proposition that the Amendment “erects no shield against merely private conduct, however discriminatory or wrongful”).

2227 This holding may have broader significance for federal civil rights law. For instance, 42 U.S.C. § 1985(3) (a civil statute paralleling the criminal statute held unconstitutional in United States v. Harris) lacks a “color of law” requirement. Although the requirement was read into it in Collins v. Hardyman, 341 U.S. 651 (1951), to avoid constitutional problems, it was read out again in Griffin v. Breckenridge, 403 U.S. 88, 97 (1971) (although it might be “difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons . . . there is nothing inherent in the phrase that requires the action working the deprivation to come from the State”). What the unanimous Court held in Griffin was that an “intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 102. As so construed, the statute was held constitutional as applied in the complaint before the Court on the basis of the Thirteenth Amendment and the right to travel; there was no necessity therefore, to consider Congress’s powers under § 5 of the 14th Amendment. Id. at 107. The lower courts have been quite divided with respect to what constitutes a non-racial, class-based animus, and what constitutional protections must be threatened before a private conspiracy can be reached under § 1985(3). See,e.g., Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Great American Fed. S. & L. Ass’n v. Novotny, 584 F.2d 1235 (3d Cir. 1978) (en banc), rev’d, 442 U.S. 366 (1979); Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) (en banc). The Court’s decision in Morrison, however, appears to preclude the use of § 1985(3) in relation to Fourteenth Amendment rights absent some state action.

2228 109 U.S. 3, 13–14 (1883).

2229 Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).

2230 383 U.S. 745, 783 and n.7 (1966) (concurring and dissenting).

2231 384 U.S. 641 (1966). Besides the ground of decision discussed here, Morgan also advanced an alternative ground for upholding the statute. That is, Congress might have overridden the state law not because the law itself violated the Equal Protection Clause but because being without the vote meant the class of persons was subject to discriminatory state and local treatment and giving these people the ballot would afford a means of correcting that situation. The statute therefore was an appropriate means to enforce the Equal Protection Clause under “necessary and proper” standards. Id. at 652–653. A similar “necessary and proper” approach underlay South Carolina v. Katzenbach, 383 U.S. 301 (1966), under the Fifteenth Amendment’s enforcement clause.

2232 79 Stat. 439, 42 U.S.C. § 1973b(e).

2233 384 U.S. at 648.

2234 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959).

2235 Katzenbach v. Morgan, 384 U.S. 641, 653–56 (1966).

2236 384 U.S. at 668. Justice Stewart joined this dissent.

2237 384 U.S. at 651 n.10. Justice O’Connor for the Court quoted and reiterated Justice Brennan’s language in Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 731–33 (1982).

2238 82 Stat. 73, 18 U.S.C. § 245. See S. Rep. No. 721, 90th Congress, 1st Sess. 6–7 (1967). See also 82 Stat. 81, 42 U.S.C. §§ 3601 et seq.

2239 Title II, Omnibus Safe Streets and Crime Control Act, 82 Stat. 210, 18 U.S.C. §§ 3501, 3502. See S. Rep. No. 1097, 90th Congress, 2d Sess. 53–63 (1968). The cases that were subjects of the legislation were Miranda v. Arizona, 384 U.S. 436 (1966), and United States v. Wade, 388 U.S. 218 (1967), insofar as federal criminal trials were concerned.

2240 Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. §§ 1973aa–1, 1973bb.

2241 Oregon v. Mitchell, 400 U.S. 112 (1970).

2242 400 U.S. at 229, 278–81 (Justices Brennan, White, and Marshall), id. at 135, 141–44 (Justice Douglas).

2243 400 U.S. at 152, 204–09 (Justice Harlan).

2244 400 U.S. at 119, 126–31 (Justice Black).

2245 The age reduction provision could be sustained “only if Congress has the power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and what state interests are ‘compelling.’” 400 U.S. at 296 (Justices Stewart and Blackmun and Chief Justice Burger). In their view, Congress did not have that power and Morgan did not confer it. But in voting to uphold the residency and absentee provision, the Justices concluded that “Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the privilege of taking up residence in another State” without reaching an independent determination of their own that the requirements did in fact have that effect. Id. at 286.

2246 See discussion of City of Rome v. United States, 446 U.S. 156, 173–83 (1980), under the Fifteenth Amendment, infra.See also Fullilove v. Klutznick, 448 U.S. 448, 476–78 (1980) (plurality opinion by Chief Justice Burger), and id. at 500–02 (Justice Powell concurring).

2247 The Voting Rights Act Amendments of 1982, Pub. L. 97–205, 96 Stat. 131, amending 42 U.S.C. § 1973, were designed to overturn City of Mobile v. Bolden, 446 U.S. 55 (1980). A substantial change of direction in Rogers v. Lodge, 458 U.S. 613 (1982), handed down coextensively with congressional enactment, seems to have brought Congress and the Court into essential alignment, thereby avoiding a possible constitutional conflict.

2248 See The Human Life Bill: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 97th Congress, lst Sess. (1981). An elaborate constitutional analysis of the bill appears in Estreicher, Congressional Power and Constitutional Rights: Reflections on Proposed ‘Human Life’ Legislation, 68 Va. L. Rev. 333 (1982).

2249 521 U.S. 507 (1997).

2250 Pub. L. 103–141, 107 Stat. 1488, 42 U.S.C. §§ 2000bb et seq.

2251 494 U.S. 872 (1990).

2252 521 U.S. at 533.

2253 521 U.S. at 532–33. The Court found that the Religious Freedom Restoration Act was “so far out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id.

2254 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (Article I powers may not be used to abrogate a state’s Eleventh Amendment immunity, but Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), holding that Congress may abrogate Eleventh Amendment immunity in exercise of Fourteenth Amendment enforcement power, remains good law). See discussion pp. 1533–37.

2255 527 U.S. 627 (1999).

2256 527 U.S. at 639–46. See also College Savings Bank v. Florida Prepaid Post-secondary Educ. Expense Bd., , 527 U.S. 666 (1999) (Trademark Remedy Clarification Act amendment to Lanham Act subjecting states to suits for false advertising is not a valid exercise of Fourteenth Amendment power; neither the right to be free from a business competitor’s false advertising nor a more generalized right to be secure in one’s business interests qualifies as a “property” right protected by the Due Process Clause).

2257 528 U.S. 62 (2000). Again, the issue of the Congress’s power under § 5 of the Fourteenth Amendment arose because sovereign immunity prevents private actions against states from being authorized under Article I powers such as the commerce clause.

2258 See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991) (applying rational basis test to uphold mandatory retirement age of 70 for state judges).

2259 528 U.S. at 86, quoting City of Boerne, 521 U.S. at 532.

2260 531 U.S. 356 (2001).

2261 42 U.S.C. §§ 12111–12117.

2262 42 U.S.C. § 12112(a).

2263 42 U.S.C. § 12112(b)(5)(A).

2264 473 U.S. 432 (1985).

2265 531 U.S. at 368.

2266 As Justice Breyer pointed out in the dissent, however, the Court seemed determined to accord Congress a degree of deference more commensurate with review of an agency action, discounting portions of the legislative history as based on secondary source materials, unsupported by evidence and not relevant to the inquiry at hand.

2267 538 U.S. 721 (2003).

2268 538 U.S. at 736. Statutory classifications that distinguish between males and females are subject to heightened scrutiny, Craig v. Boren, 429 U.S. 190, 197– 199 (1976), so they must be substantially related to the achievement of important governmental objectives, United States v. Virginia, 518 U.S. 515, 533 (1996).

2269 566 U.S. ___, No. 10–1016, slip op. (2012) (male state employee denied unpaid sick leave).

2270 Justice Ginsburg, writing for herself and three others, extensively reviewed the historical and legislative record and concluded that the family care and the self care provisions were of the same cloth. Both provisions grew out of concern for discrimination against pregnant workers, and, the FMLA’s leave provisions were not, in the dissent’s opinion, susceptible to being rent into separate pieces for analytical purposes.

2271 541 U.S. 509 (2004).

2272 42 USCS § 12132.

2273 531 U.S. 356 (2001).

2274 See, e.g., Faretta v. California, 422 U.S. 806, 819, n.15 (1975) (a criminal defendant has a right to be present at all stages of a trial where his absence might frustrate the fairness of the proceedings).

2275 541 U.S. at 524.

2276 541 U.S. at 541–42 (Rehnquist, J., dissenting).

2277 541 U.S. at 524–25. Justice Rehnquist, in dissent, disputed the reliance of the Congress on evidence of disability discrimination in the provision of services administered by local, not state, governments, as local entities do not enjoy the protections of sovereign immunity. Id. at 542–43. The majority, in response, noted that local courts are generally treated as arms of the state for sovereign immunity purposes, Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977), and that the action of non-state actors had previously been considered in such pre-Boerne cases as South Carolina v. Katzenbach, 383 U.S. 301, 312–15 (1966).

2278 546 U.S. 151 (2006).

2279 “While the Members of this Court have disagreed regarding the scope of Congress’s ‘prophylactic’ enforcement powers under § 5 of the Fourteenth Amendment, no one doubts that § 5 grants Congress the power to ‘enforce . . . the provisions’ of the Amendment by creating private remedies against the States for actual violations of those provisions.” 546 U.S. at 158 (citations omitted).

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