A Comment on Congressional Enforcement

19 Pages Posted: 24 Oct 2016

See all articles by Saikrishna Prakash

Saikrishna Prakash

University of Virginia School of Law

Date Written: 1998

Abstract

For all its brevity and simplicity, Section 5 of the Fourteenth Amendment has been one tough nut to crack. It provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” i.e., the Fourteenth Amendment. Some have insisted that Section 5 cedes to Congress wide latitude “in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” Others deny such pretensions for the seemingly modest Section.

My own views largely track Professor Rotunda’s. Notwithstanding Section 4, Congress lacks the textual authority to constrain state law and action above and beyond the constraints already imposed by the Fourteenth Amendment and the rest of the Constitution. Because Congress lacks a textual hook, the Constitution’s implicit background rule made explicit in the Tenth Amendment precludes federal legislation.

Rather than merely reiterating Professor Rotunda’s excellent points, this Comment addresses two Section 5 questions. First, does Section 5 require the judiciary to yield or to defer to congressional conclusions of law and fact regarding possible violations of the rest of the Fourteenth Amendment? Second, more generally, what authority does Section 5 actually cede to Congress? Because more than half a dozen amendments cede to Congress the authority to“enforce” their substantive provisions with “appropriate legislation,” the proper answers to these questions are of undoubted interest. Although these “enforcement” provisions were ratified over the course of more than 100 years, we might suppose that the same meaning ought to be supplied to all such provisions because they employ almost identical language.

Keywords: Fourteenth Amendment

Suggested Citation

Prakash, Saikrishna, A Comment on Congressional Enforcement (1998). Indiana Law Review, Vol. 32, p. 193, 1998, Available at SSRN: https://ssrn.com/abstract=2857519 or http://dx.doi.org/10.2139/ssrn.2857519

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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