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Press attention over the Supreme Court’s May 15 decision in United States v. Morrison has focused on its commerce clause analysis, particularly the conclusion that not everything that could possibly affect interstate commerce is within Congress’ commerce clause authority. Overlooked to some degree is the decision’s significance for the scope of Congress’ power to enforce the Fourteenth Amendment. Morrison represents the final, decisive step in the resurrection of two Fourteenth Amendment cases from the 19th century whose reputation has waxed and waned over the years. Any decent history of the Fourteenth Amendment should begin with what was not passed — specifically, the proposed Bingham Amendment. As described in detail in City of Boerne v. Flores (1997), that amendment would have given Congress “the power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states, and to all persons in the several States equal protection in the rights of life, liberty and property.” While the words of the Bingham Amendment were none too clear, they were perceived to give Congress the right to regulate private affairs directly to ensure equal rights. The amendment was rejected at least in part because it was seen as a dangerous centralization of power. The Fourteenth Amendment that we actually have was a compromise: It prohibits states from engaging in discrimination and gives Congress the right to enforce that prohibition against the states. In 1880, the Supreme Court gave a fairly expansive interpretation of that enforcement power in Ex Parte Virginia. It held that the Civil Rights Act of 1875 could be used to indict a state judicial officer who refused to allow blacks onto state juries, common law judicial immunities notwithstanding. This broad view of the enforcement power as to the actions of states and state officials was widely cited during the Warren Court era. Three years after Ex Parte Virginia came the Civil Rights Cases and United States v. Harris. In the Civil Rights Cases, the court reviewed other sections of the 1875 Civil Rights Act that regulated not states but private individuals. The court held that Section 5 of the Fourteenth Amendment, the enforcement clause, authorizes Congress to stop or deter states from engaging in discrimination that violates Section 1, i.e., state discrimination. Providing a remedy between private individuals does not do that. In Harris, the court rejected part of the Civil Rights Act of 1871 for the same reason. Had the court become radically more conservative in the three years between 1880 and 1883? The personnel changes hardly suggest it. Justice Nathan Clifford, the last remaining Democratic appointee and a dissenter in Ex Parte Virginia, was replaced by Justice Horace Gray of Massachusetts. Justice Stanley Matthews, an abolitionist before the Civil War, also joined the court. In 1886, he would write the opinion in Yick Wo v. Hopkins, in which the court extended the protections of the Fourteenth Amendment to aliens and ruled that laws that appear neutral but are clearly designed to discriminate racially violate the Fourteenth Amendment. If anything, the court’s personnel changes suggest that it would have become more solicitous of Fourteenth Amendment rights. The best explanation of the 1883 decisions is a simple one: The court had a theory of Fourteenth Amendment enforcement that permitted Congress to do a great deal against states, but nothing against private parties. Given the text of the Fourteenth Amendment, it was a pretty sound theory. The Civil Rights Cases and Harris remained stars in the Fourteenth Amendment pantheon throughout the first half of this century. Indeed, in Collins v. Hardyman (1951), the court, consisting entirely of Roosevelt and Truman appointees, reaffirmed its Fourteenth Amendment holding. Justice Robert Jackson noted that the justices in 1883 were “all indoctrinated in the cause which produced the Fourteenth Amendment, but convinced that it was not to be used to centralize power so as to upset the federal system.” The view began to change in the 1960s. First, in a pair of 1964 cases, Heart of Atlanta Motel v. United States and Katzenbach v. McClung, Justices William Douglas and Arthur Goldberg suggested in concurrences that Congress had properly enacted the “public accommodations” provision of the Civil Rights Act of 1964 pursuant to its Section 5 enforcement power. In United States v. Guest (1966), six justices — three in a concurrence and three in a dissent — opined that Congress could reach private conduct pursuant to Section 5. The case involved the remarkably broad Section 241 of the U.S. Criminal Code, prohibiting conspiracies to injure others in the enjoyment of any right or privilege afforded by the Constitution or laws of the United States. The opinion for the court found that the indictment had stated a claim because it alleged a conspiracy with state actors; the opinion specifically refused to determine whether Congress’ Section 5 power could reach private conduct. The concurrence agreed, but stated in dicta that Congress had the power to reach conspiracies with or without state action when they interfered with Fourteenth Amendment rights (whatever that means). While the concurrence did not mention those inconvenient 19th century cases, Justice William Brennan Jr.’s dissent did. He specifically rejected the limitations of the Civil Rights Cases and asserted that a majority of the court agreed with him. Four years later, in Adickes v. S.H. Kress & Co., when the court refused to consider whether the Civil Rights Cases should be overruled (because the issue had not been preserved), Brennan in partial dissent protested that Harris and the Civil Rights Cases had already been overruled in Guest. In District of Columbia v. Carter (1973), the court, while noting that Section 1 of the Fourteenth Amendment only reaches state action, said in a cryptic footnote: “This is not to say, of course, that Congress may not proscribe purely private conduct under Section 5 of the Fourteenth Amendment.” Finally, in his partial dissent in Regents of the University of California v. Bakke (1978), Justice Thurgood Marshall assailed the “notorious” Civil Rights Cases as “the Court strangl[ing] Congress’ efforts to use its power to promote racial equality.” It was in the 1980s that the court slowly began to resurrect the notion that Congress’ power under Section 5 is limited. In General Building Contractors Association v. Pennsylvania (1983), the court dropped a footnote observing that certain 19th century civil rights laws reached private conduct only because they were based on the Thirteenth, not the Fourteenth, Amendment. In Romer v. Evans (1996), the court noted that the Civil Rights Cases had established early on that the Fourteenth Amendment did not give Congress the authority to ban discrimination in public accommodations. A year later, in City of Boerne, the court characterized the “remedial” Section 5 analysis of the Civil Rights Cases and Harris as proper, although it did not endorse their specific holdings. Then came Morrison. The plaintiff, Christy Brzonkala, had sued under a section of the Violence Against Women Act of 1994 that permitted victims of gender-motivated violence to sue their attackers for damages. After disposing of the commerce clause as a possible basis for this federal law, the court considered whether it could be justified under Section 5 of the Fourteenth Amendment. The court relied upon the Civil Rights Cases and Harris for the proposition that it could not. Those cases were venerable, the court suggested; they required stare decisis. Echoing Hardyman (but not citing it), the court extolled the “insight attributable to the members of the court at that time,” who had “intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.” Wow. Petitioners in Morrison (including the United States) tried to distinguish the 19th century cases by pointing to the record of state failure to protect women’s rights that Congress had ostensibly developed. You think that’s state failure, the court replied. There was huge state failure to protect African-American rights by state courts prior to the passage of the 1871 and 1875 Civil Rights Acts at issue in Harris and the Civil Rights Cases. Yet that didn’t change the outcome of the cases because they were not trying to enforce state compliance with Section 1 of the Fourteenth Amendment. And the Morrison court was not done. Petitioners, it noted, had cited Guest and Carter. In fact, this was barely true (at least at the high court). Yet the court went out of its way to sweep aside the dicta in each case as inconsistent with the Civil Rights Cases and Harris, while noting that three plus three in Guest did not necessarily equal six. Thus have the Civil Rights Cases and Harris been returned to their proper place. And rightly so. The Fourteenth Amendment was a compromise, its focus limited to state action. Heed Justice Jackson’s historical note in Hardyman: The justices in 1883 had been through the war and understood the compromise better than we ever will. Michael Rosman, general counsel for the Center for Individual Rights, argued “United States v. Morrison” on behalf of respondent Antonio Morrison.

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