Friday, April 22, 2022

Legislative Primacy and the Fourteenth Amendment

Mark Graber

Section 3 of the Fourteenth Amendment disqualifies from holding state or federal office any person who has participated in an insurrection or rebellion against the United States.  Josh Blackman and Seth Barrett Tillman maintain that the persons responsible for the Fourteenth Amendment thought that only Congress could implement Section 3 (“Only the Feds Could Disqualify Madison Cawthorn and Majorie Taylor Greene,” New York Times, April 20, 2022).  Their claims are technically correct, but grossly misleading with respect to the original understanding of the Fourteenth Amendment and false to American practice for more than one-hundred and thirty years.

Blackman and Tillman are right to note that the Republicans who drafted the Fourteenth Amendment believed that Congress was responsible for implementing Section 3.  They fail to inform their readers that those same Republicans believed that Congress was responsible for implementing the entire Fourteenth Amendment.  Section 3 was no different than what became the more popular Section 1, which includes the citizenship, privileges and immunities, due process, and equal protection clauses.  During the late nineteenth, twentieth and early twenty-first century, the Supreme Court without objection took on the primary responsibility for implementing Section 1. The justices have never suggested that Section 3 is an exception to this practice.

The persons responsible for the Fourteenth Amendment were committed to a practice we might call legislative primacy.  Congress was expected to take the lead implementing the post-Civil War Amendments by legislation.  Courts might examine the constitutionality of that legislation, but courts were not expected to play a major, if any role independently implementing the constitutional ban on slavery or the provisions of the Fourteenth Amendment.  Legislative primacy reflected both theory and practice in the 1860s.  Many leading Republicans believed that political parties, not courts, were the primary vehicles for constitutional meaning.  Abraham Lincoln in his first inaugural address insisted that the people through elections had the right to challenge Supreme Court decisions.  As important, a Supreme Court staffed by a number of holdovers from the tribunal that declared in Dred Scott v. Sandford (1856) former slaves could not be American citizens was hardly likely to lead a crusade for racial equality after the Civil War.  If the Fourteenth Amendment was going to be implemented, Congress would have to do the implementing.  Every member of Congress knew this.

Representative John A. Bingham of Ohio, the person most responsible for Section 1 of the Fourteenth Amendment, frequently expressed his commitment to legislative primacy.  Bingham’s speech to the House of Representatives on February 28, 1866 championing only the need to augment congressional authority to protect fundamental rights. He informed fellow representatives, “The question is, simply whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by the Constitution?  That is the question, and the whole question.”  Bingham did not change his tune even when the Joint Committee on Reconstruction deleted the reference to “Congress shall have power” in Section 1 and moved that clause to Section 5.  Bingham still insisted that the point of Section 1 was to give Congress “the power . . . by congressional enactment . . . . to protect by national law the privileges and immunities of all the citizens of the Republic.  No member of Congress explicitly asserted a judicial power to implement any provision in the Fourteenth Amendment.

Republicans assumed legislative primacy during the early 1870s when debating what became the Civil Rights Act of 1875.  The original version of that bill included a ban on school segregation.  Many members of Congress, most notably Senator Charles Sumner of Massachusetts, enthusiastically supported federal legislation prohibiting race discrimination in public schooling.  Others insisted that provision be deleted.  No member of Congress suggested that the Supreme Court might declare school segregation unconstitutional in the absence of federal legislation.  Both proponents and opponents of the provision on school segregation assumed this constitutional decision was for Congress to make.

The Supreme Court confirmed that legislative primacy was the law of the land in Ex parte Virginia (1879)Justice William Strong’s majority opinion denied that the Fourteenth Amendment was self-enforcing.  He wrote., “It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed.  it is not said that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions.  As Bingham had insisted, the Fourteenth Amendment empowered Congress, not courts.  Strong continued, “It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation.”

The Supreme Court and Congress almost immediately forgot Strong’s words.  By the turn of the twentieth century, the Supreme Court was vigorously wielding the Fourteenth Amendment to strike down state laws.  Contemporary justices, both conservative and liberal, as aggressively wield the Fourteenth Amendment today.  Judicial conservatives do not ask permission from Congress when declaring bans on guns or affirmative action unconstitutional.  Judicial liberals as freely exercise independent judicial power when striking down bans on abortion and laws discriminating against same-sex couples.

When championing legislative primacy, no member of the Congress that drafted the Fourteenth Amendment distinguished between Section 1 and Section 3.  Neither the participants in the debate over the Civil Rights Act of 1875 nor the justices that decided Ex parte Virginia thought the rules for implementing Section 1 differed from Section 3.  No Supreme Court justice who has asserted independent power under Section 1 to strike down legislation has ever suggested that institutional responsibility for implementing Section 3 is different. 

There is no difference.  Judges who swear off implementing Section 3 are on principle obligated to swear off implementing Section 1.  This means liberals must abandon Roe v. Wade and conservatives must accept affirmation action and gun control laws.  Indeed, if we are to harken to calls to respect the original understanding of the Fourteenth Amendment, the same courts that refuse to disqualify persons from public office who participated in the January 6, 2021 insurrection will on principle be obligated to reverse the Supreme Court’s decision in Brown v. Board of Education (1954), which was also based on the independent judicial authority to interpret the Fourteenth Amendment Blackmon and Tillman would have the courts abjure.

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