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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 Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu 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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Legislative Primacy and the Fourteenth Amendment
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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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