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