Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
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Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
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Alice Ristroph alice.ristroph at shu.edu
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Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I have placed a draft of my new paper, "The Reconstruction Power," on SSRN. This article, like my previous article, Commerce, applies to method of text and principle to a specific set of constitutional issues, in this case Congress's power to enforce the Reconstruction Amendments. It shows that fidelity to original meaning and underlying principles would produce very different doctrines than courts currently apply. Here is the abstract:
The Reconstruction Power
This essay argues that modern doctrine has not been faithful to the text, history and structure of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were designed to give Congress broad powers to protect civil rights and civil liberties; together they form Congress’s Reconstruction Power.
Congress gave itself broad powers because it believed it could not trust the Supreme Court to protect the rights of the freedmen. The Supreme Court soon realized Congress’s fears, not only limiting the scope of the Reconstruction Amendments but also Congress’s powers to enforce them in decisions like United States v. Cruikshank, 92 U.S. 542 (1875) and the Civil Rights Cases, 109 U.S. 3 (1883). Due to these early cases, Congress was often forced to use its Commerce Power to protect civil rights. Modern decisions beginning with City of Boerne v. Flores, 521 U.S. 507 (1997) and United States v. Morrison, 529 U.S. 598 (2000) have compounded these errors.
When we strip away these doctrinal glosses and look at the original meaning and structural purposes underlying the Reconstruction amendments, we will discover that the Reconstruction Power gives Congress all the authority it needs to pass modern civil rights laws, including the Civil Rights Act of 1964. That was the original point of these amendments, and that should be their proper construction today.
When it enforces the Reconstruction Amendments, Congress is not limited to remedying or preventing state violations of rights. It has long been recognized that Congress may reach private conduct through its Thirteenth Amendment powers to eradicate the badges and incidents of slavery. But Congress also has the power to enforce the 14th Amendment’s Citizenship Clause-- a guarantee of equal citizenship that, like the Thirteenth Amendment, contains no state action requirement. The Citizenship Clause, designed to secure equality of citizenship for freedmen, gives Congress the corresponding power to protect the badges and incidents of citizenship. Congress may therefore ban discriminatory private conduct that it reasonably believes will contribute to or produce second-class citizenship.
In addition to its powers to enforce the Citizenship Clause, Congress may also reach private action to prevent interference with federal constitutional rights. In conjunction with its powers to enforce the Guarantee Clause, Congress may therefore reach private violence designed to deter political participation, terrorize political opponents, or undermine representative government.
The failure of state and local governments to guarantee equal protection of the laws was a central concern of the framers of the Fourteenth Amendment, and giving Congress the power to remedy this violence was one of the central purposes of the Fourteenth amendment. Today this same power enables Congress to pass laws banning violence directed at women and other federal hate crimes legislation.
Finally, because of institutional differences between courts and legislatures, Congress may implement the state action requirement more broadly than courts currently do, for example, by imposing antidiscrimination norms on government contractors and operators of public accommodations. For this reason Title II of the 1964 Civil Rights Act, which bans discrimination in public accommodations, is not only a legitimate exercise of Congress’s power to enforce the Fourteenth Amendment; it is a paradigmatic example of that power.
The Supreme Court did not reach these questions in 1964 because it feared that overturning old precedents like the 1883 Civil Rights Cases would encourage Southern resistance to the new Civil Rights Act. But we should have no such compunction today. It is long past time to remedy the Supreme Court’s errors, and reconstruct the great Reconstruction Power of the Constitution.