Chapter 13

CONGRESSIONAL ENFORCEMENT
OF CIVIL RIGHTS

This Chapter involves several aspects of Congress’ power to enforce the Amendments enacted immediately after the Civil War. The main concepts are:

• Congress has special powers to enforce the Civil War Amendments, i.e., the 13th, 14th, and 15th Amendments.
• Congress probably can’t prohibit purely private discrimination under the 14th and 15th Amendments.
  • But Congress can prohibit purely private discrimination under the 13th Amendment, if it finds that the discrimination is a “badge or incident of slavery.”
• Congress does not have power to define the scope of the Civil War Amendments. Only the federal courts may do this.
  • So Congress may not “expand” the meaning of these Amendments, i.e., define them in a way that causes more government action to run afoul of these Amendments.
  • Nor may Congress “reduce” the scope of these Amendments. Thus once the Supreme Court says for instance, that the Equal Protection Clause prohibits a certain kind of government action, Congress can’t use its enforcement powers to say, in effect, “The conduct shall no longer be deemed to be a violation of the Equal Protection Clause.”

I.INTRODUCTION

A. Issues presented: This chapter examines Congress’ power to enforce the Amendments enacted immediately after the Civil War, i.e., the Thirteenth, Fourteenth and Fifteenth Amendments. There are two main issues regarding this power:

1. Reaching private actors:  To what extent may Congress enact legislation pursuant to these Amendments so as to reach purely private conduct, given that these Amendments (at least the Fourteenth and Fifteenth) only refer to conduct by the states?

2. Interpreting the Amendments:  What power does Congress have to interpret these Amendments differently from the Supreme Court, with respect to: (i) remedies to impose for what the Court and Congress both would agree constitutes violations of these Amendments; and (ii) the substantive content of these rights?