Pre-Modern Doctrine on Enforcement Clause

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

In the Civil Rights Cases,1 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 Section 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 Section 5 was necessary and proper to enforce Section 1.2 But, in United States v. Guest,3 Justice William 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,4 Justice William 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 Section 5 must be appropriate to. That is, in upholding the constitutionality of a provision of the Voting Rights Act of 19655 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.” 6 Because the Court had previously upheld an English literacy requirement under equal protection challenge,7 acceptance of the argument would have doomed the federal law. But, said Justice William 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.8

In dissent, Justice John 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.” 9 Justice William 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.” 10 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;11 on the other hand, it enacted provisions of law purporting to overrule the Court’s expansion of the self-incrimination and right-to-counsel clauses of the Bill of Rights, expressly invoking Morgan.12

Congress’s power under Morgan returned to the Court’s consideration when several states challenged congressional legislation13 lowering the voting age in all elections to eighteen 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.14 Four Justices accepted Morgan in full,15 while one Justice rejected it totally16 and another would have limited it to racial cases.17 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.18

More recent decisions read broadly Congress’s power to make determinations that appear to be substantive decisions with respect to constitutional violations.19 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.20 Moreover, movements have been initiated in Congress by opponents of certain of the Court’s decisions, notably the abortion rulings, to use Section 5 powers to curtail the rights the Court has derived from the Due Process Clause and other provisions of the Constitution.21

1: 109 U.S. 3, 13–14 (1883).
2: Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).
3: 383 U.S. 745, 783 and n.7 (1966) (concurring and dissenting).
4: 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.
5: 79 Stat. 439, 42 U.S.C. § 1973b(e).
6: 384 U.S. at 648.
7: Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45 (1959).
8: Katzenbach v. Morgan, 384 U.S. 641, 653–56 (1966).
9: 384 U.S. at 668. Justice Potter Stewart joined this dissent.
10: 384 U.S. at 651 n.10. Justice Sandra Day O’Connor for the Court quoted and reiterated Justice William Brennan’s language in Miss. Univ. for Women v. Hogan, 458 U.S. 718, 731–33 (1982).
11: 82 Stat. 73, 18 U.S.C. § 245. See S. Rep. No. 721, 90th Cong. 6–7 (1967). See also 82 Stat. 81, 42 U.S.C. §§ 3601 et seq.
12: Title II, Omnibus Safe Streets and Crime Control Act, 82 Stat. 210, 18 U.S.C. §§ 3501, 3502. See S. Rep. No. 1097, 90th Cong. 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.
13: Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. §§ 1973aa–1, 1973bb.
14: Oregon v. Mitchell, 400 U.S. 112 (1970).
15: 400 U.S. at 229, 278–81 (Brennan, White, and Marshall, JJ.), id. at 135, 141–44 (Douglas, J.).
16: Id. at 152, 204–09 (Harlan, J.).
17: Id. at 119, 126–31 (Black, J.).
18: 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.’” Id. 296 (Stewart and Blackmun, JJ., and Burger, C.J.). 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.
19: See discussion of City of Rome v. United States, 446 U.S. 156, 173–83 (1980), under the Fifteenth Amendment. See also Fullilove v. Klutznick, 448 U.S. 448, 476–78 (1980) (plurality opinion of Burger, C.J., ), and id. at 500–02 (Powell, J., concurring).
20: The Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 (codified as amended at 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.
21: See The Human Life Bill: Hearings Before the S. Judiciary Subcomm. on Separation of Powers, 97th Cong. (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).