CONSTITUTIONAL LAW
PROF. FISCHER
Class 14: Feb 8, 2008
Congressional Power under the XIII
and XIV Reconstruction Amendments
Thirteenth Amendment (ratified
1865)
• Section 1. Neither slavery nor involuntary
servitude, except as a punishment for
crime where of the party shall have been
duly convicted, shall exist within the United
States, or any place subject to their
jurisdiction.
• Section 2. Congress shall have the power
to enforce this article by appropriate
legislation.
Fourteenth Amendment (ratified
1868)
• Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
• Section 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article.
Civil Rights Cases (1883) [C p.
207]
• Can Congress regulate
private conduct under § 2
of Amendment XIII and §
5 of Amendment XIV
• Majority opinion by
Bradley (in photo at left)
(joined by Waite, Miller,
Field, Woods, Matthews,
Grey, Blatchford)
• Dissent by Harlan
Harlan’s dissent in the Civil
Rights Cases [not in book]
• "My brethren say that when a man has emerged from slavery,
and by the aid of beneficient legislation has shaken off the
inseparable concomitants of that state, there must be some
stage in the progress of his elevation when he takes the rank of
a mere citizen, and ceases to be the special favorite of the laws,
and when his rights as a citizen, or a man, are to be protected in
the ordinary modes by which other men's rights are protected. It
is, I submit, scarcely just to say that the colored race has been
the special favorite of the laws. What the nation, through
Congress, has sought to accomplish in reference to that race is,
what had already been done in every state in the Union for the
white race, to secure and protect rights belonging to them as
freemen and citizens; nothing more. The one underlying purpose
of congressional legislation has been to enable the black race to
take the rank of mere citizens. The difficulty has been to compel
a recognition of their legal right to take that rank, and to secure
the enjoyment of privileges belonging, under the law, to them as
a component part of the people for whose welfare and happiness
government is ordained."
A radical change: Jones v. Alfred
H. Mayer (1968) [C p. 208]
• Used the same phrase,
“badges and incidents of
slavery” as the Civil Rights
Cases, but interpreted it much
more broadly
• 7-2
• Majority by: Stewart
Joined by: Warren, Black,
Douglas, Brennan, Fortas,
Marshall
Concurrence by: Douglas
Dissent by: Harlan
Joined by: White
United States v. Morrison (2000)
[C p. 209]
• See Class on Commerce
Clause Era IV
• 5-4 on commerce power
• Majority opinion of
Rehnquist
• Dissent of Breyer (joined
by Stevens as to his § 5
analysis – Souter and
Ginsburg joined him as to
whether Congress had
power to legislate under
the Commerce Clause
Katzenbach v. Morgan and
Morgan (1966)
• 7-2
• Nationalist
approach to § 5
taken by Brennan’s
majority opinion
(joined by Warren,
Black, Clark, White,
Fortas; Douglas
concurred)
• Dissent of Harlan,
joined by Stewart
City of Boerne v. Flores (1997)
• Majority opinion by
Justice Kennedy,
joined by Rehnquist,
Scalia, Thomas,
Ginsburg, Stevens
• Dissents of Justice
O’Connor (joined by
Breyer), Souter