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ed 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’ power under § 5. Id. at 755. the right to inform federal officials of violations of federal law. 1971 The right of interstate travel is a basic right derived from the Federal Constitution which Congress may protect. 1972 In United States v. Williams, 1973 in the context of state action, the Court divided four-to-four 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. Price 1974 and United States v. Guest, 1975 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. Inasmuch as both Price and Guest concerned conduct which the Court found implicated with sufficient state action, it did not then have to reach the question of § 241’s constitutionality when applied to private action interfering with rights not the subject of a general police power. But Justice Brennan, responding to what he apparently intepreted as language in the opinion of the Court construing Congress’ 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’ power was broader. 1976 ‘‘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 offi- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00370 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 2041 1977 383 U.S. at 782. 1978 383 U.S. at 777-79, 784. 1979 109 U.S. 3, 13–14 (1883). 1980 Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). 1981 383 U.S. 745, 783 and n.7 (1966) (concurring and dissenting). 1982 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 balcers 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.’’ 1977 The Justice throughout the opinion refers to ‘‘Fourteenth Amendment rights,’’ by which he meant rights which, 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. 1978 Congressional Definition of Fourteenth Amendment Rights In the Civil Rights Cases, 1979 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 which§ 1 forbade the States to adopt. And the Court was quite clear that under its responsibilities of judicial review, it was the body which would determine that a state law was impermissible and that a federal law passed pursuant to § 5 was necessary and proper to enforce § 1. 1980 But in United States v. Guest, 1981 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, 1982 Justice Brennan, this time speaking for the Court, in effect overrode the limiting view and VerDate Aug<10>2004 02:45 Sep 16, 2004 Jkt 077500 PO 00000 Frm 00371 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 2042 AMENDMENT 14—RIGHTS GUARANTEED lot 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. 1983 79 Stat. 439, 42 U.S.C. § 1973b(e). 1984 384 U.S. at 648. 1985 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959). 1986 Katzenbach v. Morgan, 384 U.S. 641, 653–56 (1966). 1987 384 U.S. at 668. Justice Stewart joined this dissent. 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 1965 1983 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.’’ 1984 Inasmuch as the Court had previously upheld an English literacy requirement under equal protection challenge, 1985 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 which might have led Congress to its conclusion; since Congress ‘‘brought a specially informed legislative competence’’ to an appraisal of voting requirements, ‘‘it was Congress’ 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. 1986 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.’’ 1987 Justice Brennan rejected this reasoning. ‘‘We emphasize that Congress’ 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 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00372 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 2043 1988 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). 1989 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. 1990 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 which 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. 1991 Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. §§ 1973aa–1, 1973bb. 1992 Oregon v. Mitchell, 400 U.S. 112 (1970). 1993 400 U.S. at 229, 278-81 (Justices Brennan, White, and Marshall), id. at 135, 141–44 (Justice Douglas). 1994 400 U.S. at 152, 204-09 (Justice Harlan). 1995 400 U.S. at 119, 126-31 (Justice Black). 1996 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 guarantees.’’ 1988 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; 1989 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. 1990 Congress’ power under Morgan returned to the Court’s consideration when several States challenged congressional legislation 1991 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 which many observers had previously seen. 1992 Four Justices accepted Morgan in full, 1993 while one Justice rejected it totally 1994 and another would have limited it to racial cases. 1995 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. 1996 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00373 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 2044 AMENDMENT 14—RIGHTS GUARANTEED 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. 1997 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). 1998 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, thus avoiding a possible constitutional conflict. 1999 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). 2000 521 U.S. 507 (1997). 2001 Pub. L. 103–141, 107 Stat. 1488, 42 U.S.C. § 2000bb et. seq. 2002 494 U.S. 872 (1990). 2003 521 U.S. at 533. More recent decisions read broadly Congress’ power to make determinations that appear to be substantive decisions with respect to constitutional violations. 1997 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. 1998 Moreover, movements have been initiated in Congress by opponents of certain of the Court’s decisions, notably the abortion rulings, to utilize § 5 powers to curtail the rights the Court has derived from the due process clause and other provisions of the Constitution. 1999 The case of City of Boerne v. Flores, 2000 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, 2001 which expressly overturned the Court’s narrowing of religious protections under Employment Division v. Smith, 2002 exceeded congressional power under section 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. 2003 Unlike the pervasive suppression of the African American vote in the South which led to the passage of the Voting Rights Act, there was no similar history of VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00374 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 2045 2004 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. 2005 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. 2006 527 U.S. 627 (1999). 2007 527 U.S. at 639–46. See also College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 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). 2008 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. 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. 2004 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 powers 2005 seek alternative legislative authority in section 5. For instance, in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 2006 a bank which 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. 2007 A similar result was reached regarding the application of the Age Discrimination in Employment Act to state agencies in Kimel v. Florida Board of Regents. 2008 In determining that the Act did not meet the ‘‘congruence and proportionality’’ test, the Court fo- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00375 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 2046 AMENDMENT 14—RIGHTS GUARANTEED 2009 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). 2010 528 U.S. at 86, quoting City of Boerne, 521 U.S. at 532. 2011 531 U.S. 356 (2001). 2012 42 U.S.C. §§ 12111 - 12117. 2013 42 U.S.C. § 12112(a). 2014 42 U.S.C. § 12112(b) (5) (A). 2015 473 U.S. 432 (1985). 2016 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. cused 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. 2009 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.’’ 2010 Despite what was considered by many to be a better developed legislative record, the Court in Board of Trustees of the University of Alabama v. Garrett 2011 also rejected the recovery of money damages against states, this time under the Americans with Disabilities Act of 1990 (ADA). 2012 The ADA prohibits employers, including states, from ‘‘discriminating against a qualified individual with a disability’’ 2013 and requires employers to ‘‘make reasonable accommodations [for] . . . physical or mental limitations . . . . unless [to do so]. . . would impose an undue hardship on the . . . business.’’ 2014 Although the Court had previously overturned discriminatory legislative classifications based on disability in City of Cleburne v. Cleburne Living Center, 2015 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 the14th Amendment, and instances thereof did not qualify as a ‘‘history and pattern of unconstitutional employment discrimination.’’ 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, 2016 but the re- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00376 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 2047 quirements of the ADA would be out of proportion to the alleged offenses. VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00377 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 VerDate Apr 14 2004 11:04 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00378 Fmt 8221 Sfmt 8221 C:\CONAN\CON046.XXX PRFM99 PsN: CON046

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