An Affirmative Power to Interpret: Congress and Section 5 of the 14th Amendment

What a different place the world would be if the Reconstruction Congress had possessed the good sense to adopt John Bingham’s first draft of what became the Fourteenth Amendment. It ran, “The Congress shall have the power to make all laws necessary and proper to secure to all persons in every State within this Union equal protection in their rights of life, liberty, and property.”[1]

Congress of course opted for something rather more fulsome, the five-part Amendment we know today that fatefully separated the textual description of protected rights from Congress’s power to enforce them, even as it introduced among the right provisions such verbal obscurities as “privileges and immunities” and “due process of law.”[2] The upshot is that the Amendment’s rights provisions became self-enforcing, meaning enforceable by courts, at the same time the rights the courts were supposed to enforce become considerably more opaque. Perhaps not surprisingly, the Supreme Court by the 1880s had read Section One to embrace a generic “liberty value” that it alone had the power to interpret and defend.[3] And while it eventually abandoned the particular interpretation of “liberty” that Lochner v. New York made notorious, the Court never let go of the idea that the Fourteenth Amendment installed it as the “ultimate expositor of constitutional values.”[4] Or as the Court put it in Cooper v. Aaron in 1958, “the federal judiciary is supreme in the exposition of the law of the Constitution.”[5]

This was not the structural revolution the framers of the Fourteenth Amendment meant to achieve. They intended to make Congress the principal guardian of the rights secured by the Amendment. And though their drafting might have been more precise, they did say what they meant: Section Five confers on Congress—not the Court—authority to “enforce, by appropriate legislation, the provisions of this article.”[6]

My thesis is that Section Five gives Congress affirmative power to interpret the substance of constitutional rights when it goes about enforcing the Fourteenth Amendment. And the best way to operationalize this authority and its relationship to judicial review is to borrow the deference framework familiar from Chevron v. Natural Resources Defense Council.[7] In a word, the judiciary is obliged to defer to Congress’s interpretation of rights protected by the Fourteenth Amendment so long as Congress’s interpretation is genuinely reasonable. That deference should obtain even when the Court has already interpreted the right at issue: just as in the administrative law setting, the Court should defer to a reasonable interpretation by Congress, regardless of precedent, when the rights provision is susceptible to more than one legitimate reading.[8]

This framework captures both the substance and the limits of the Section Five power, which permits Congress to interpret the Amendment but not to rewrite it by statute. And it puts the judiciary in its proper, constitutional place. The role the Court has claimed for itself in the last century as the “supreme expositor” of the Constitution is in fact a constitutional anomaly, and not a happy one. The Court’s imperiousness has siphoned authority away from the political branches, stifled public participation in constitutional politics, and encouraged political irresponsibility. This is not as it should be. It is not as it has to be. Recovering a properly robust reading of the Section Five power may provide a much-needed corrective.

The Case for Deference

A Chevron-inspired regime for Section 5 would work like this. When faced with an interpretation of a Fourteenth Amendment right by Congress in conflict with its own, the Supreme Court (or any federal court) would first decide whether the rights provision in question is indeterminate, susceptible to more than one good-faith, reasonable interpretation.[9] If the answer is yes, the Court would then ask whether Congress’s interpretation is itself reasonable.[10] If yes again, the Court would defer to Congress’s interpretation, even if it did not regard that interpretation as best—just as it does in the administrative law context. If Congress’s interpretation is not reasonable, on the other hand, the Court would accord it no deference and instead announce the interpretation it found most persuasive.

The same procedure should apply when the Supreme Court has already passed on the meaning of the right. Here, the Court’s 2005 decision in National Cable & Telecommunications Association v. Brand X is the guide. That case held that only a judicial precedent that found “the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.”[11] So too, only if the Supreme Court had previously found the right unambiguous would it not defer to an otherwise reasonable interpretation by Congress. In short, a reasonable congressional interpretation of an indeterminate provision would displace the Court’s own precedent and the rule of stare decisis.

Chevron justified its deference regime by reference to congressional intent and the political accountability of the executive branch. The case for Chevron deference in Section Five rests on analogous principles, three of them. The first is Congress’s authority to interpret the Constitution for itself. The second is the Amendment’s explicit commitment to Congress of the power of enforcement. The third is the fact of textual indeterminancy.

Begin with Congress’s co-equal power to interpret the Constitution. Even in its most imperial mood, the Supreme Court has acknowledged that Congress has independent authority—indeed, responsibility—to adjudge the Constitution’s meaning. Here is the Court, for instance, in Boerne v. Flores: “When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution.”[12] The Court could hardly say otherwise. The Constitution gives to no one branch final authority to construe its terms. Rather, because the document governs the powers of each branch, each is required to interpret the document when carrying out its duties.

Congress has been doing this from the first. In 1789, for example, Congress staged a prolonged and heated debate on the scope of the President’s removal power rather than leave it to the judiciary. No less an authority than Congressman James Madison insisted Congress was the appropriate body to settle the issue.[13] David Currie has catalogued numerous other instances in which Congress has settled questions of constitutional meaning, from spending to foreign affairs.[14] In fact, there is good reason to think the founding generation expected constitutional disputes would ordinarily be resolved by the political branches—and ultimately, by the verdict of the people. Thomas Jefferson described the election of 1800 as an act of public constitutional interpretation and suggested grand questions of constitutional meaning, whether about the powers of the presidency or the size of the federal government, would henceforth be settled by the public’s voice.[15]

In light of all this, it simply will not do to describe the judiciary, in the vein of Cooper v. Aaron, as “supreme in the exposition of the law of the Constitution.” It most assuredly is not. No one branch is supreme; the pertinent question is how the branches’ co-equal duties of interpretation relate to one another.

And it is surely relevant, in addressing that question, that the text of the Fourteenth Amendment as duly ratified by the States expressly commits to Congress the job of enforcing its terms. This is the second principle supporting a Chevron-like deference regime in the Section Five context. After surveying the voluminous historical evidence, including congressional floor debates and materials from state ratification, historian William Nelson concluded that “the framing generation anticipated that Congress rather than the courts would be the principal enforcer of section one.”[16] That did not mean that Congress had the power to create altogether new rights by calling them “privileges and immunities.” The Reconstruction Congress rejected this reading of Section Five: the enforcement power was to be not creative in this way; Congress was not to have the power to add rights or terms.[17] But in the years immediately following the Amendment’s passage, Congress did engage in extensive debates about how best to interpret the meaning of the terms that already appeared in the Amendment, including whether the text authorized desegregation of public schools and common carriers.[18]

That is to say, the Congresses closest in time to the one that drafted the Amendment seemed to believe that enforcing its terms would necessarily involve interpreting them substantively, just as courts routinely interpret the substance of constitutional provisions. Any explanation of Section Five should make sense of this commitment to Congress of the enforcement power. A Chevron-style deference regime does.

Finally, a Chevron rule is supported by the constitutionally circumscribed, textually determined scope of judicial review.[19] The “judicial power” exercised by federal courts in the American regime arises only under and from the Constitution, which means that courts have power to enforce only what the Constitution says. There is no stand-alone power of judicial review. Courts have the authority to adjudicate “Cases or Controversies” and to apply the Constitution to do so.[20] That is all. As Chief Justice Marshall explained in Marbury v. Madison, courts can invalidate statutes only for this reason: when the Constitution and a statute both purport to control a case, but announce different rules, the court must apply the Constitution as superior law.[21]

But some portions of the Constitution are indeterminate, perhaps many of them. They admit of more than one reasonable interpretation, and it is impossible to say conclusively which interpretation is right. If, when construing one of these passages, the Supreme Court believes the best interpretation is one thing and Congress believes another, the Court cannot finally say that Congress has exceeded its constitutional authority.[22] Ambiguity of that kind calls for some sort of deference. Such ambiguity is not confined to the Fourteenth Amendment, of course, or to the other rights provisions the Amendment incorporates. But given the Amendment’s explicit commitment of the enforcement power to Congress, and Congress’s co-equal authority to interpret the Constitution, indeterminate language in the Fourteenth Amendment context supports making Congress’s reasonable interpretations of the Amendment language the default, rather than the Court’s.

In the end, a Chevron-style regime rightly relates the interpretive power of Congress to that of the Court. It honors Congress’s co-equal authority to interpret the Constitution and gives Congress the lead in enforcing the Amendment’s provisions. But it does not permit Congress to alter the Amendment by statute. Congress’s interpretation must be a genuinely reasonable one in order to receive deference. Put another way, it must be a good-faith effort actually to interpret the Amendment’s provisions rather than to supplant them. The Court, meanwhile, continues to exercise its own duty to apply the Constitution: it checks any congressional action that clearly violates the Amendment’s text. But the Court’s review, in this regime, is conditioned by the fact that the Amendment makes Congress the primary enforcement agent, which in turn entitles Congress’s views to special weight in the face of textual indeterminancy.

Solving Problems

This Chevron­­­­-informed approach accounts for the text, structure and history of the Amendment, and it has the added virtue of bringing some order to the Supreme Court’s badly confused case law.

The paradigmatic Section Five case remains Katzenbach v. Morgan,[23] both because it was one of the first times Congress had invoked its Section Five power since the 19th century, and because the Court’s decision in the case set the terms of the Section Five debate down to the present day. Morgan concerned Section 4(e) of the Voting Rights Act of 1965, which barred enforcement of New York’s literacy tests for otherwise qualified voters educated in Puerto Rico. The problem was, the Court had said just seven years before that literacy tests of that sort did not violate the Fourteenth Amendment.[24] Congress, then, appeared to have promulgated a different interpretation of the Amendment’s substance than the one announced by the Court.

Writing for the majority, Justice William Brennan upheld the statute, but with reasoning that proved highly problematic. Brennan concluded that Congress was not limited under Section Five “to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional.”[25] Congress could in fact go further, and expand the rights provisions beyond the bounds the Court announced.[26] The operative idea was expand. “Section 5 does not grant Congress power to exercise discretion in the other direction and to enact statutes so as in effect to dilute equal protection and due process decisions of this Court,” Brennan cautioned.[27] The Section Five power worked only in one direction.

Leaving aside the (quite intractable) problem of what constitutes expansion and what dilution, Brennan’s logic implied that Section Five gave Congress power to supplement the rights guaranteed in the Amendment, to add to them, rather than to interpret them. That suggestion wrong-footed Section Five jurisprudence for the next forty years and led, ironically, to the Court’s conclusion that Congress lacks the power to interpret the Amendment at all.

The Court never relied on Morgan outside the voting rights field, and while it continued to pay lip service in the years that followed to the idea that “[t]he power to enforce may at times include the power to define situations which Congress determines threatens” guaranteed rights,[28] Justices nervous about the creative redefinition of constitutional rights increasingly spoke of the Section Five power as merely “prophylactic,”[29] reliant on the definition of rights the Court articulated. Then in Boerne, the Court appeared to reject Congress’s power to interpret rights altogether, holding that Section Five is only “remedial” and confines Congress to supplying enforcement mechanisms to “prevent and remedy” rights violations specified by the Court.[30] “Were it not so,” the Court reasoned, “shifting legislative majorities could change the Constitution.”[31]

That last inference is one Morgan invited, but it is mistaken. When Congress construes constitutional rights differently from the Court, it does not “change the Constitution.” It carries out the interpretive task the Constitution empowers Congress to perform. The best explanation for the Morgan power, as it came to be called, is not that Congress may supplement or ratchet up the protections of the Amendment’s text. That would be to change the Constitution in some way. The best explanation is that the Court owes Congress deference when Congress interprets an ambiguous rights provision reasonably and in good faith. The Morgan Court was right to overlook its otherwise controlling precedent in Lassiter because Section Five makes Congress’s reasonable interpretations the default, not the Court’s.

Constitutional interpretation is a task the Constitution empowers Congress to perform. It is time for the Court to stop playing king and give Congress—and the people—their due.

[1] Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 46 (1914).

[2] For a cogent analysis of the drafting process and the textual ambiguity that process progressively introduced, see William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 40-63 (1988).

[3]See, e.g., Mugler v. Kansas, 123 U.S. 623 (1887); see also Holden v. Hardy, 169 U.S. 366 (1898).

[4] David A.J. Richards, Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory, 45 Fordham L. Rev. 1281, 1316 (1977). See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 865 (1992) (“the Judiciary” is the branch “fit to determine what the Nation’s law means and to declare what it demands”); see also United States v. Windsor, 133 S.Ct. 2675, 2688 (2013) (the Supreme Court has “primary role in determining the constitutionality of a law”).

[5] 358 U.S. 1, 18 (1958).

[6] U.S. Const., amend. XIV, § 5.

[7] 467 U.S. 837 (1984).

[8] Nat’l Cable & Telecommc’ns Ass’n v. Brand X, 545 U.S. 967, 982-85 (2005).

[9]See Chevron, 467 U.S. at 842-43.

[10]Id. at 843.

[11] 545 U.S. at 982-83.

[12] 521 U.S. 507, 535 (1997).

[13]See Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1073-75 (2006).

[14]See David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801 (1997).

[15]See Joshua D. Hawley, The Transformative Twelfth Amendment, 55 William & Mary L. Rev. (forthcoming 2014).

[16] Nelson, supra note 2, at 122.

[17] Nelson, supra note 2, at 114-15.

[18] Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 175-76 (1997).

[19]See Michael Stokes Paulsen, A Rfra Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249, 294 n.10 (1995).

[20]See Windsor, 133 S.Ct. at 2698-99 (Scalia, J., dissenting).

[21] 5 U.S. (1 Cranch) 137, 177 (1803).

[22]See Paulsen, supra note 19, at 294 n.10.

[23] 384 U.S. 641 (1966).

[24] Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959).

[25] Morgan, 384 U.S. at 649.

[26]Id. at 650-51.

[27]Id. at 651 n.10 (quotations omitted).

[28] City of Richmond v. J.A. Crosson Co., 488 U.S. 469, 490 (1989).


[30] 521 U.S. at 519-20, 535.

[31]Id. at 519, 529.

Reader Discussion

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on October 11, 2013 at 00:40:48 am

Unless I am misunderstanding your first paragraph, I cannot understand how you would prefer the federal congress -- compared to State’s rights. (And, I understand full well the Civil Liberty Law the delegates were transferring to the 14th Amendment.) If the federal congress had the power to which you would have given them, in the words you’ve described, all of the States would be subjected to the laws of the Congress – which is not what our founders, at any time prior or during the debates, would have sanctioned. (I also believe that “the due process of law” is not a verbal obscurity, in the context of the 14th Amendment – it holds the state judiciary to its legal binding.)
I am going to suggest a different scenario to your fourth paragraph, Joshua. I believe you’ve missed the substance of the Fourteenth as the delegates finalized it. (And I do not understand why – I have read a number of your articles with satisfaction.) Any way, here goes: The Congress is obliged to defer, by the law’s enumeration, to the State’s rights protected by the Fourteenth amendment, as long as a State’s statute is genuinely reasonable.
The federal courts, themselves, have no jurisdiction of the 14th against the States – but they do against Congress if Congress over steps the boundary of the 14th Amendment.
(I would like to hear a response -- I may be reading you wrongly,)
Respectfully, John
(Author of The Tribute, published by Xlibris, May 2013)

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John E. Jenkins
on October 11, 2013 at 23:29:37 pm

Correction on my post: Civil Liberty Law s/b Civil Rights Law. Congress limited in Section 5. to "life, liberty, and property.

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John E. Jenkins
on October 31, 2013 at 12:06:49 pm


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Ted Ung

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.