Northwest Austin Municipal Utility Distr. One v. Holder Brief Amicus Curiae Constitutional Accountability Center

    No. 08-322

3 fn € J)e

Suprem e Court of tfje ®mteb S tates

Northwest Austin Municipal Utility 
District Number One,

Appellant,
v.

Eric H. Holder, Jr.,
Attorney General of the United States, et a l,

Appellees.

On Appeal from the United States District Court 
for the District of Columbia

Brief of the Constitutional Accountability 
Center as Amicus Curiae Supporting Appellees

Douglas T. Kendall Clifford m . Sloan
Elizabeth B. WYDRA Counsel of Record
DAVID H. GANS 1440 New York Avenue, N.W.
Constitutional Washington, DC 20005

Accountability (202) 371-7000
Center

1301 Connecticut Ave., N.W.
Suite 502
Washington, D.C. 20036 
(202) 296-6889

Counsel for Amicus Curiae



TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE..............................1

INTRODUCTION AND SUMMARY OF THE
ARGUMENT................................................  .....1

ARGUMENT.............................  4

I. THE TEXT AND HISTORY OF THE 
FOURTEENTH AMENDMENT’S
ENFORCEMENT CLAUSE WERE FORGED 
IN THE CRUCIBLE OF RECONSTRUCTION...4

II. THE FOURTEENTH AMENDMENT 
GRANTED CONGRESS BROAD 
DISCRETION TO CHOOSE APPROPRIATE 
MEANS FOR PROTECTING 
CONSTITUTIONAL RIGHTS..................... ......... 7

A. The Framers of the Fourteenth
Amendment Sought To Confer Broad 
Legislative Discretion on Congress To 
Enforce the Amendment....................................8

B. The Text of the Fourteenth Amendment
Was Intended and Understood To Give 
Congress Broad Discretion To Enact 
Appropriate Enforcement Legislation............13

C. The Drafting History of the Fourteenth
Amendment Confirms That the 
Enforcement Power Was Understood To Be 
Broad and Central to the Amendment’s 
Goals................................................................... 20



D. The Fourteenth Amendment’s Ratification
Debates Confirm That Congress Would 
Have Broad Power to Enforce the 
Fourteenth Amendment.................................. 27

E. Legislative Interpretations of Section 5 in
the Reconstruction Era Confirm the 
Contemporary Understanding of Congress’s 
Enforcement Power....... ...................................28

CONCLUSION..............................................................30



Ill

TABLE OF AUTHORITIES
Page(s)

CASES
Ableman v. Booth, 62 U.S. (21 How.) 506

(1859).......................................................................16
City of Boerne v. Flores, 521 U.S. 507 (1997)..........1-2
City of Rome u. United States, 446 U.S. 156

(1980)..........................................................................1
Dred Scott v. Sandford, 60 U.S. (19 How.)

393 (1857)..................................................................9
Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968)...............................................    ..17
Katzenbach v. Morgan, 384 U.S. 641 (1966).......26-27
McCulloch u. Maryland, 17 U.S. (4 Wheat.)

316 (1819)....................................................... passim

Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539
(1842).................................................................. 15-19

South Carolina v. Katzenbach, 383 U.S. 301
(1966)...............................................  1

Tennessee v. Lane, 541 U.S. 509 (2004)...................... 7

CONSTITUTIONAL PROVISIONS AND 
STATUTES

U.S. Const.:
Art. I, § 8, cl. 18 ...................................................... 14
Art. IV, § 2, cl. 3 ...............................................15, 16
Amend. XIII:................................................... passim

§ 1..................    16-17
§ 2......   passim



IV

U.S. Const.
Amend. XIV: ................................................. passim

§ l ...............................................................7-8, 24
§ 2.........................................................................24
§ 3.........................................................................24
§ 4.......................................   24
§ 5................................................................ passim

Amend. XV:....................................................passim
§ 1 ......................................................................... ; 6
§ 2.....................................   passim

Civil Rights Act of 1866, ch. 31,
14 Stat. 27...........................................5, 6, 17-19, 25

Fannie Lou Hamer, Rosa Parks, and 
Coretta Scott Kang Voting Rights Act 
Re authorization and Amendments Act of 
2006, Pub. L. No. 109-246,
120 Stat. 577.............................................. 1, 2, 3, 30

Fugitive Slave Act of 1793,
ch. 7, 1 Stat. 302......................................................15

Fugitive Slave Act of 1850,
ch. 60, 9 Stat. 462................................................... 16

LEGISLATIVE MATERIALS

Cong. Globe:
39th Cong., 1st Sess. (1865-66):

p. 4 3 .....................................................................19
p. 475 .....................................................   -19
p. 586 ...................    26
p. 1034..................      20-21
p. 1064................................................................ 22
p. 1065.......................................................... 21-22

Table of Authorities— Continued



V

Cong. Globe:
39th. Cong., 1st Sess. (1865-66):

p . 1082......................................
p . 1088......................................
p . 1093......................................
p. 1095 ................ ................ .
p . 1118......................................
p . 1124......................................
p. 1292.............. ........................
p . 1294......................................
p .2462......................................
p .2498......................................
p. 2500...................... ...............
p .2502......................................
p .2513......................................
p. 2510-11................................ .
p .2538......................................
p. 2542......................................
p. 2764......................................
p .2765 .....................................
p .2766 .....................................
p .2768 .....................................
p .2940 .....................................
App. p. 257................................

41st Cong., 2nd Sess. (1870): 
p . 3882......................................

42nd Cong., 1st Sess. (1871):
App. p. 83...................................

42nd Cong., 2nd Sess. (1872): 
p. 728 .........................................

43rd Cong., 1st Sess. (1874): 
p. 414 .........................................

Table of Authorities— Continued

................ 22

..........22, 26

................. 15

...........23-24

...... ...15, 18

................. 19

................. 15

.....15, 18-19

...........24-25

...........11-12

................ 12

............... .26

........ .......18

................ 12

................ 12

.................11

...................9

..... ............. 9
9, 10, 20, 26
.... 10-11, 20
................12
................12

29

27, 29

28-29

29



VI

Journal of the Senate of the State of Texas, 
llthLegis. (1866):

p. 421-22.......................................... i.................27
United States Congress, Presidential Vetoes, 

1789-1988, S. Pub. 102-12, 103rd Cong.,
2nd Sess. (1992):

p. 1-30..................................................................5
OTHER MATERIALS

Akhil Reed Amar, Intratextualism, 112
Harv. L. Rev. 747 (1999)............................2, 13, 17

Akhil Reed Amar, Foreword: The Document 
and the Doctrine, 114 Harv. L. Rev. 26 
(2000) .........................................................................................2, 8

Akhil Reed Amar, America’s Constitution:
A Biography (2005)......................................... 2, 5, 6

James E. Bond, No Easy Walk to Freedom: 
Reconstruction and the Ratification of 
the Fourteenth Amendment (1997)....... ........27, 28

Evan H. Caminker, “Appropriate” Means- 
Ends Constraints on Section 5 Powers,
53 Stan. L. Rev. 1127 (2001)............................2, 26

Steven A. Engel, Note, The McCulloch 
Theory of the Fourteenth Amendment:
City of Boerne v. Flores and the Original 
Understanding of Section 5, 109 Yale L.J.
115 (1999).................................................... 2, 13, 14

Eric Foner, Reconstruction: America’s
Unfinished Revolution, 1863-77 (1988)................ 5

Table of Authorities— Continued



Robert J. Kaczorowski, The Supreme Court 
and Congress’s Power to Enforce 
Constitutional Rights: An Overlooked 
Moral Anomaly, 73 Fordham L. Rev. 153

Table of Authorities— Continued

(2004).................................................................. 2, 15
James Kent, Commentaries on American

Law (1826).................................. ........................... 15
Abraham Lincoln, The Collected Works of 

Abraham Lincoln (Roy P. Basler ed.,
1953)......................................................................4, 5

Michael W. McConnell, Institutions and 
Interpretation, 111 Harv. L. Rev. 153 
(1997)............................................ .......... 2, 13, 25-26

John T. Noonan, Jr., Narrowing the 
Nation’s Power: The Supreme Court 
Sides with the States (2002)................................... 2

Michael Stokes Paulsen, A Government of 
Adequate Powers, 31 Harv. J.L. & Pub.
Pol’y 991 (2008)........................................................ 2

Joseph Story, Commentaries on the 
Constitution of the United States 
(1833)................................................................ 15, 19



1

INTEREST OF AMICUS CURIAE1
The Constitutional Accountability Center (CAC) 

is a think tank, public interest law firm, and action 
center dedicated to fulfilling the progressive promise 
of our Constitution’s text and history. CAC works in 
our courts, through our government, and with legal 
scholars and the public to improve understanding of 
the Constitution and to preserve the rights, freedoms, 
and structural safeguards that it guarantees. CAC 
accordingly has a strong interest in this case and in 
the scope of Congress’s enforcement powers under 
the Reconstruction Amendments.

INTRODUCTION AND SUMMARY OF THE 
ARGUMENT

For the reasons stated by the Federal Appellee, 
Intervenor-Appellees, and the District Court, 
Congress’s extension of the Voting Rights Act 
preclearance provision is well within its 
constitutional powers.

The Appellees have shown in their briefs that the 
Act’s preclearance provision is constitutional under 
South Carolina v. Katzenbach, 383 U.S. 301 (1966) 
and City of Rome v. United States, 446 U.S. 156 
(1980), as well as City of Boerne v. Flores, 521 U.S.

1 No counsel for a party authored this brief in whole or in part, 
and no such counsel or party made a monetary contribution 
intended to fund the preparation or submission of this brief. No 
person other than the amicus curiae, or its counsel, made a 
monetary contribution intended to fund the briefs preparation 
or submission. The written consent of the Solicitor General 
accompanies this brief. The remaining parties have consented 
to the filing of this brief by filing blanket letters of consent.



2

507 (1997), and its progeny. See, e.g., Br. for the 
Federal Appellee, at 16-30; Br. for Intervenor- 
Appellees Texas State Conference of NAACP 
Branches, et al., at 22-32. As the United States has 
demonstrated, “both lines of cases agree that where, 
as here, Congress seeks to enforce a right that is at 
the core of the protection afforded by the 
Reconstruction Amendments, this Court’s review of 
the appropriateness of Congress’s chosen method of 
protection is highly deferential.” Br. for the Federal 
Appellee, at 8.

The history and text of the Reconstruction 
Amendments strongly support the conclusion that 
Congress acted well within its constitutional 
authority in enacting the Voting Rights Act extension. 
A broad range of scholars has recently enriched our 
knowledge of the text and history of the Fourteenth 
Amendment’s enforcement clause.2 The history of the 
Fourteenth Amendment’s enforcement clause is 
particularly important in understanding Congress’s

2 E.g., Michael Stokes Paulsen, A Government of Adequate 
Powers, 31 Harv. J.L. & Pub. Pol’y 991 (2008); Akhil Reed Amar, 
America’s Constitution: A Biography (2005); Robert J. 
Kaczorowski, The Supreme Court and Congress’s Power to 
Enforce Constitutional Rights: An Overlooked Moral Anomaly, 
73 Fordham L. Rev. 153 (2004); John T. Noonan, Jr., Narrowing 
the Nation’s Power: The Supreme Court Sides with the States 
(2002); Evan H. Caminker, “Appropriate” Means-Ends 
Constraints on Section 5 Powers, 53 Stan. L. Rev, 1127 (2001); 
Akhil Reed Amar, Foreword: The Document and the Doctrine, 
114 Harv. L. Rev. 26 (2000); Steven A. Engel, Note, The 
McCulloch Theory of the Fourteenth Amendment: City of Boerne 
v. Flores and the Original Understanding of Section 5, 109 Yale 
L.J. 115 (1999); Akhil Reed Amar, Intratextualism, 112 Harv. L. 
Rev. 747 (1999); Michael W. McConnell, Institutions and 
Interpretation, 111 Harv. L. Rev. 153 (1997).



3

power to enforce the guarantees of the
Reconstruction Amendments, as it produced the most 
extended debate and discussion. Amicus CAC thus 
focuses extensively in this brief on the history of the 
adoption of the Fourteenth Amendment.

The Congress that considered and adopted the 
Fourteenth Amendment viewed broad congressional 
authority as an indispensable lynchpin of the 
Amendment. The language that the Framers used to 
define the scope of Congress’s authority—
“appropriate legislation”—reflected this decision to 
ensure that Congress would have an ample berth for 
legislative choices. The drafting history in Congress, 
ratification debates in State legislatures, and 
contemporaneous legislative interpretations of 
Section 5 all reflect an understanding of extensive 
congressional power and discretion to enforce the 
Amendment.

The available evidence about the scope of the 
Fourteenth Amendment’s enforcement clause thus 
points overwhelmingly to the conclusion that 
Congress has broad authority and discretion under 
Section 5 of the Fourteenth Amendment and the 
nearly identical enforcement provision of the 
Fifteenth Amendment. See Br. for the Federal 
Appellee, at 16 (arguing that the enforcement clauses 
of the Fourteenth and Fifteenth Amendments were 
deliberately intended to confer “broad new legislative 
powers”). Whatever the outer boundaries of this far- 
reaching power, the Voting Rights Act extension fits 
comfortably within the Reconstruction Framers’ 
conception that Congress would exercise its 
experience and expertise to fashion legislative



4

solutions in furtherance of the Reconstruction 
Amendments’ paramount protections.

ARGUMENT

I. THE TEXT AND HISTORY OF THE 
FOURTEENTH AMENDMENT’S 
ENFORCEMENT CLAUSE WERE FORGED 
IN THE CRUCIBLE OF RECONSTRUCTION

Before turning to the history of the Fourteenth 
Amendment’s adoption, it is important to recognize 
that the Fourteenth Amendment’s enforcement 
clause was shaped by the country’s experience after 
the Thirteenth Amendment, and that the Fourteenth 
Amendment, in turn, helped to shape the 
enforcement power granted under the Fifteenth 
Amendment.

The Thirteenth Amendment was horn out of the 
Civil War to end the current crisis of slavery and 
prevent future calamities. Addressing a crowd that 
gathered around the White House on February 1, 
1865, President Abraham Lincoln called the 
Thirteenth Amendment, sent that day for ratification 
by the States, a “king’s cure” for the evils of slavery 
that paved the way for “the reunion of all the states 
perfected and so effected as to remove all causes of 
disturbance in the future.” 8 The Collected Works of 
Abraham Lincoln 254-55 (Roy P. Basler ed., 1953). 
The Thirteenth Amendment—passed by Congress at 
Lincoln’s urging, ratified by several of the States in 
his memory—represented a dramatic constitutional 
departure. While the first eleven amendments to the 
Constitution all sought to limit the power of the 
federal government, the enforcement clause of the 
Thirteenth Amendment added to federal power in



5

expansive language, beginning a new constitutional 
tradition of expanding congressional power to enforce 
constitutional guarantees. See Akhil Reed Amar, 
America’s Constitution: A Biography 360-361 (2005).

While achieving President Lincoln’s quest to root 
slavery out of our founding document, the Thirteenth 
Amendment quickly proved insufficient to secure 
fully for the nation the “new birth of freedom” 
Lincoln promised at Gettysburg. 7 The Collected 
Works of Abraham Lincoln 23 (Roy P. Basler ed., 
1953). As members of Congress moved to address 
these problems with the passage of the Civil Rights 
Act of 1866, they were met by opposition in Congress 
and a veto by President Johnson on the ground that 
the Act exceeded Congress’s power to enforce the 
Thirteenth Amendment. See Eric Foner, 
Reconstruction: America’s Unfinished Revolution, 
1863-77250 (1988).

The 39th Congress demonstrated its broad 
understanding of the enforcement power conferred by 
the Thirteenth Amendment by passing the 1866 Civil 
Rights Act over President Johnson’s veto—the first 
time in U.S. history a major piece of legislation was 
passed over a presidential veto3—but this fight 
crystallized the need for more constitutional change. 
The Fourteenth Amendment was approved by 
Congress two months after passage of the 1866 Civil 
Rights Act to secure both liberty and equality against 
hostile acts of State and local governments; this new 
grant of power ended any doubt about the 
constitutionality of the 1866 Civil Rights Act.

3 See U.S. Congress, Presidential Vetoes, 1789-1988, S. Pub. 
102-12, 103rd Cong., 2d Sess., at 1-30 (1992).



6

Echoing the Thirteenth Amendment’s provision that 
“Congress shall have power to enforce this article by 
appropriate legislation,” U.S. Const, amend. XIII, § 2, 
the Fourteenth Amendment also gave Congress 
broad authority to enforce, by “appropriate 
legislation,” the Constitution’s new protections for 
civil and human rights. U.S. Const, amend. XIV, § 5. 
See generally Amar, America’s Constitution, at 363 
(explaining that the people ratified the Thirteenth 
and Fourteenth Amendments “ [k]nowing full well 
that Congress believed that this language authorized 
transformative new federal statutes to uproot all 
vestiges of unfreedom and inequality”).

The Fifteenth Amendment, passed by the 40th 
Congress in early 1869 and ratified in early 1870, 
completed the Constitution’s Second Founding that 
followed the Civil War. With the Fourteenth 
Amendment having broadly secured civil rights and 
liberties, the Fifteenth Amendment declared that 
citizens of the United States have a right to vote that 
cannot be “denied or abridged . . .  on account of race, 
color, or previous condition of servitude.” U.S. Const, 
amend. XV, § 1. Like the Thirteenth and Fourteenth 
Amendments, the Fifteenth Amendment sweepingly 
declares in its second section that “Congress shall 
have power to enforce this article by appropriate 
legislation.” Id. § 2.

While the three Reconstruction Amendments 
contain nearly identical enforcement clauses, it is in 
the debates over the Civil Rights Act of 1866 and the 
Fourteenth Amendment’s enforcement power where 
our Reconstruction Framers made their intentions 
absolutely clear. Answering the challenges to federal 
authority raised by opponents of the 1866 Act, the



7

Framers of the Fourteenth Amendment stated in no 
uncertain terms that they were granting Congress 
the sweeping authority of Article I powers as 
interpreted by McCulloch v. Maryland, 17 U.S. (4 
Wheat.) 316 (1819). See Br. for the Federal Appellee, 
at 17. Accordingly, the text and history of the 
Fourteenth Amendment inform the meaning of the 
Fifteenth Amendment’s grant of congressional power 
to enforce the right to vote, as well as the Fourteenth 
Amendment itself.4
II. THE FOURTEENTH AMENDMENT 

GRANTED CONGRESS BROAD 
DISCRETION TO CHOOSE APPROPRIATE 
MEANS FOR PROTECTING 
CONSTITUTIONAL RIGHTS

The Fourteenth Amendment unmistakably 
committed the nation to the protection of individual 
rights, including the right to be free of racial 
discrimination. As Section 1 proclaims, “No state 
shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property without due process of law; nor

4 As the United States’ brief shows, the Court has given 
McCulloch-style deference to enforcement legislation under all 
three Reconstruction Amendments with respect to measures 
directed against racial discrimination. Br. for the Federal 
Appellee, at 19 (citing, inter alia, Tennessee v. Lane, 541 U.S. 
509, 561 (2004) (Scalia, J., dissenting)). At the very least, as 
explained by Intervenor-Appellees, the renewal of the VRA’s 
preclearance provisions is clearly constitutional in light of the 
specific office and mission of the Fifteenth Amendment. See Br. 
for Intervenor-Appellees Texas State Conference of NAACP 
Branches, et al., at 22-32.



8

deny to any person within its jurisdiction the equal 
protection of the laws.” U.S. Const, amend. XIV, § 1.

The fifth section of the Amendment announced 
that Congress would share with the courts the 
responsibility for giving effect to these fundamental 
constitutional commitments: “The Congress shall 
have power to enforce, by appropriate legislation, the 
provisions of this article.” U.S. Const, amend. XIV, 
§ 5. The congressional debates over the Fourteenth 
Amendment, the text the Framers chose, the 
Amendment’s drafting history, the ratification 
debates, and early post-ratification interpretations of 
the text, all confirm that Section 5 was intended and 
understood to give Congress wide latitude to select 
the measures it considered appropriate for the 
protection of constitutional rights. See also Br. for 
the Federal Appellee, at 16-20.

A. The Framers of the Fourteenth
Amendment Sought To Confer Broad 
Legislative Discretion on Congress To 
Enforce the Amendment

As the Fourteenth Amendment was debated in 
Congress, southern States were devising strategies to 
restrict the freedoms of newly freed slaves and 
enacting new “Black Codes,” aimed at making 
African Americans second-class citizens. See Amar, 
Foreword: The Document and the Doctrine, 114 Harv. 
L. Rev. at 64-65. The protections of the Fourteenth 
Amendment, such as the Equal Protection Clause, 
provided part of the constitutional response to these 
renewed threats to racial equality. The Framers of 
the Fourteenth Amendment, however, were 
understandably reluctant to leave the judiciary with 
the sole responsibility for protecting against racial



9

discrimination and other violations of constitutional 
rights. In the aftermath of the Supreme Court’s 
decision in Dred Scott u. Sandford, 60 U.S. (19 How.) 
393 (1857), the Framers of the Fourteenth 
Amendment were determined to give Congress a 
concurrent power to enforce the constitutional 
guarantees of liberty and equality.

Against this backdrop, it is no surprise that the 
congressional debates on the Fourteenth Amendment 
stressed the importance of a broad federal legislative 
power to protect constitutional rights. The leading 
proponents of the Amendment, Senator Jacob 
Howard and Representative John Bingham, 
delivered important speeches explaining that 
Congress would have wide latitude to enact 
“appropriate” measures for protecting constitutional 
rights.

Introducing the proposed Amendment to the 
Senate in May 1866, Senator Howard devoted a 
significant portion of his remarks to Congress’s 
enforcement power under Section 5. See Cong. Globe, 
39th Cong., 1st Sess. 2764-66 (1866). Howard 
emphasized the importance of Congress’s power to 
enforce the Amendment. The antebellum 
Constitution, Howard noted, did not give Congress 
authority to protect constitutional rights against 
state infringement. Id. at 2765. Though the Bill of 
Rights was understood to protect individual liberties 
against federal invasion, these liberties did not fall 
within “the sweeping clause of the Constitution 
authorizing Congress to pass all laws necessary and 
proper for carrying out the foregoing or granted 
powers.” Id. at 2766. Accordingly, Congress lacked 
authority to give “full effect” to individual liberties,



10

“while at the same time the States are not restrained 
from violating the principles embraced in them 
except hy their own local constitutions, which may be 
altered from year to year .’’ Id.

The enforcement clause in Section 5 of the 
proposed Fourteenth Amendment, Howard declared, 
would remedy this flaw in the Constitution. “The 
great object of the first section of this amendment 
is . . .  to restrain the power of the States and compel 
them at all times to respect these great fundamental 
guarantees.” Cong. Globe, 39th Cong., 1st Sess. 2766 
(1866). Without congressional action, however, 
Section l ’s restraints would be ineffectual. It was 
necessary, if these restraints were “to be effectuated 
and enforced, as they assuredly ought to be, that 
additional power should be given to Congress to that 
end.” Id. The fifth section of the Amendment gave the 
legislature precisely this power. “Here is a direct 
affirmative delegation of power to Congress to carry 
out all the principles of all these guarantees, a power 
not found in the Constitution.” Id.

Senator Howard’s speech refutes a narrow 
reading of Congress’s power to enforce the 
Fourteenth Amendment. The enforcement provision, 
Howard said, conferred “authority to pass laws which 
are appropriate to the attainment of the great object 
of the amendment.” Cong. Globe, 39th Cong., 1st 
Sess. 2766 (1866) (emphasis added). Section 5 “casts 
upon Congress the responsibility of seeing to it, for 
the future, that all the sections of the amendment 
are carried out in good faith, and that no State 
infringes the rights of persons or property.” Id. at 
2768. For Senator Howard, the enforcement 
provision was “indispensable” because it “imposes



11

upon Congress this power and this duty. It enables 
Congress, in case the States shall enact laws in 
conflict with the principles of the amendment, to 
correct that legislation by a formal congressional 
enactment.” Id.

The House debates confirmed the breadth and 
significance of the congressional power to enforce the 
Fourteenth Amendment’s substantive guarantees. 
Like Senator Howard, Representative Bingham 
emphasized that Section 5 would bring a 
fundamental change in the balance of power between 
the federal government and the States. Cong. Globe, 
39th Cong., 1st Sess. 2542 (1866). Immediately after 
reading the full text of the proposed Amendment to 
the House, Bingham called attention to the 
enforcement power. Id. “There was a want hitherto,” 
Bingham noted, “and there remains a want now, in 
the Constitution of our country, which the proposed 
amendment will supply.” Id. Before the Fourteenth 
Amendment, the Constitution failed to recognize “the 
power in the people, the whole people of the United 
States, by express authority of the Constitution to do 
that by congressional enactment which hitherto they 
have not had the power to do, and have never even 
attempted to do”: to enact legislation for the purpose 
of safeguarding constitutional rights. Id.

The statements of several other supporters 
confirmed that Congress’s enforcement power was a 
vital component of the Fourteenth Amendment. 
Representative Broomall expressed the point 
forcefully: “We propose . . .  to give power to the 
Government of the United States to protect its own 
citizens within the States, within its own jurisdiction. 
Who will deny the necessity of this? No one.” Cong.



12

Globe, 39th Cong., 1st Sess. 2498 (1866).
Representative Miller similarly highlighted, in 
emphatic terms, that the enforcement power was 
essential to any constitutional provision that 
purported to protect rights: “The fifth section gives to 
Congress the power to enforce the provisions of this 
article by appropriate legislation. This of course is 
requisite to enforce the foregoing sections, or such of 
them as may be adopted, and is too plain to admit of 
argument; and in fact is not, as I am aware, 
contested by any gentleman in this House.” Id. at 
2510-11. Congressman Jehu Baker likewise 
explained that the fifth section of the Amendment 
was “necessary in order to carry the proposed article 
into practical effect.” Id. at App. 257.

The Fourteenth Amendment’s opponents also 
understood Section 5 to confer a broad discretion on 
Congress to enforce the Amendment’s provisions— 
and, in fact, this broad power was one of the reasons 
for their opposition to the Amendment. See Cong. 
Globe, 39th Cong., 1st Sess. 2500 (1866) (Rep. 
Shanklin) (arguing that that the Fourteenth 
Amendment would “strike down . . . State rights and 
invest all power in the General Government”); id. at 
2538 (Rep. Rogers) (objecting that the Fourteenth 
Amendment would “consolidate j] everything in one 
imperial despotism”); id. at 2940 (Sen. Hendricks) 
(calling the enforcement clause “most dangerous”). 
Accordingly, while supporters and opponents of the 
Fourteenth Amendment parted ways on the merit of 
the Amendment’s broad enforcement power, both 
sides agreed that the Amendment would provide 
Congress significant authority to enforce its 
provisions.



13

B. The Text of the Fourteenth Amendment 
Was Intended and Understood To Give 
Congress Broad Discretion To Enact 
Appropriate Enforcement Legislation

The Framers of the Amendment chose language 
that was calculated to give Congress wide latitude to 
enact legislation for the purpose of securing 
constitutional rights. As several scholars of the 
Fourteenth Amendment’s history have explained, the 
phrase “by appropriate legislation” had a specific 
meaning in 1866— a meaning that gave effect to the 
expressed wishes of the Amendment’s supporters to 
assign Congress a powerful role to protect against 
unconstitutional actions. See, e.g., Amar,
Intratextualism, 112 Harv. L. Rev. at 822-27; 
McConnell, Institutions and Interpretation, 111 Harv. 
L. Rev. at 178 n.153; Engel, The McCulloch ITeory, 
109 Yale L.J. at 131-34.

Had the drafters of the Fourteenth Amendment 
wanted to grant Congress a more narrowly 
constrained power to enforce the provision’s 
substantive guarantees, they could have inserted 
restrictive language into Section 5, or could simply 
have given Congress the power “to enforce the 
provisions of this article.” Instead, the Framers chose 
to include in the enforcement provision these words: 
“by appropriate legislation.” This phrase, separated 
by commas from the rest of the section, might seem 
at first glance to be superfluous. How else, one might 
ask, is Congress to enforce the Fourteenth 
Amendment’s commitments to equality and liberty, if 
not “by appropriate legislation”?

The phrase, however, was not superfluous. To 
those who drafted, debated, proposed, and ratified



14

the Fourteenth Amendment, the term “by 
appropriate legislation” called to mind an expansive 
vision of federal legislative authority. See Engel, The 
McCulloch Theory, 109 Yale L.J. at 133-43; see also 
Br. for the Federal Appellee, at 17-18. Under the 
Supreme Court’s classic elucidation of congressional 
power under Article I, which was well known at the 
time the Fourteenth Amendment was considered and 
adopted, Congress was understood to have wide 
discretion to choose whatever legislative measures it 
considered “appropriate” for achieving the purposes 
the Constitution assigned to it. McCulloch, 17 U.S. (4 
Wheat.) 316, 401-23 (1819). In McCulloch, Chief 
Justice Marshall had laid down the fundamental 
principle determining the scope of Congress’s powers 
under the Necessary and Proper Clause: “Let the end 
be legitimate, let it be within the scope of the 
constitution, and all means which are appropriate, 
which are plainly adapted to that end, which are not 
prohibited, but consist with the letter and spirit of 
the constitution, are constitutional.” Id. at 421 
(emphasis added).

This broad construction of congressional power 
entailed a deferential role for judicial scrutiny when 
Congress acted pursuant to an affirmative grant of 
power. McCulloch squarely rejected the substitution 
of judicial judgment regarding the measures needed 
to fulfill Congress’s duties. For the courts to review 
the necessity of Congress’s chosen measures would 
be to violate the separation of powers between the 
Courts and Congress, “to pass the line which 
circumscribes the judicial department, and to tread 
on legislative ground.” Id. at 423. Chief Justice 
Marshall used the word “appropriate” to describe the



15

scope of congressional power no fewer than six times. 
Id. at 408, 410, 415, 421, 422, 423.5

The Framers of the Fourteenth Amendment were 
also acutely aware that the pre-Civil War Supreme 
Court had given a broad construction to Congress’s 
power to enforce what the Court viewed as a 
constitutional “right” to the return of slaves, as 
recognized by the Fugitive Slave Clause—one of the 
few provisions of the antebellum Constitution that 
limited state action. See Kaczorowski, 73 Fordham L. 
Rev. at 221-30. In Prigg v. Pennsylvania, 41 U.S, (16 
Pet.) 539 (1842), the Court upheld the Fugitive Slave 
Act of 1793. The Act’s extensive scheme of civil 
remedies against private parties who interfered with

5 The influential treatise-writers of the age followed 
McCulloch’s understanding of the breadth of congressional 
freedom to choose “appropriate” measures. The accounts of 
congressional power authored by Justice Story and Chancellor 
Kent, for example, were cited repeatedly during the debates 
over the Reconstruction Amendments. See, e.g., Cong. Globe, 
39th Cong., 1st Sess. 1093 (1866) (statement of Rep. Bingham) 
(quoting Story); id. at 1118 (statement of Rep. Wilson) (quoting 
Kent); id. at 1292 (statement of Rep. Bingham) (quoting Kent); 
id. at 1294 (statement of Rep. Shellabarger) (quoting Story). 
Story used the word “appropriate” to emphasize that Congress 
“must have wide discretion as to the choice of means.” 1 Joseph 
Story, Commentaries on the Constitution of the United States 
417 (1833) (“[T]he only limitation upon the discretion would 
seem to be, that the means are appropriate to the end. And this 
must naturally admit of considerable latitude; for the relation 
between the action and the end . . .  is not always so direct and 
palpable, as to strike the eye of every observer.”) (emphasis 
added). Chancellor Kent likewise invoked McCulloch when 
stressing the importance of Congress’s power to adopt any 
means “which might be appropriate and conducive” to a 
permissible end. 1 James Kent, Commentaries on American 
Law 238 (1826) (emphasis added).



16

slaveholders’ attempts to recapture their “property” 
was, the Court held, justified as “appropriate” 
legislation to enforce the entitlements of slaveholders 
under the Fugitive Slave Clause. See U.S. Const, art. 
IV, § 2, cl. 3. Justice Story expressed this conclusion 
using language that the Fourteenth Amendment’s 
drafters would later adopt: “the natural inference” 
from the existence of the right of recapture was that 
Congress was “clothed with the appropriate authority 
and functions to enforce it.” Prigg, 41 U.S. at 615 
(emphasis added). The Court relied on McCulloch as 
authority for the implied enforcement power: “The 
end being required, it has been deemed a just and 
necessary implication, that the means to accomplish 
it are given also; or, in other words, that the power 
flows as a necessary means to accomplish the end.” 
Id. at 619; see also Ableman v. Booth, 62 U.S. (21 
How.) 506, 517, 526 (1859) (stating that Congress 
had power to “protect and guard the rights of all by 
appropriate laws” and upholding the Fugitive Slave 
Act of 1850). Under Prigg, Congress had the same 
broad discretion to choose “appropriate” means for 
enforcing rights as it did when it acted to “carry into 
execution” its Article I powers, even where the 
Constitution provided no explicit textual authority 
for an enforcement power.

Those who drafted and supported the Fourteenth 
Amendment, though they abhorred the “right” the 
Court upheld in Prigg, made sure to incorporate the 
Prigg Court’s understanding of congressional power, 
and enlisted it in the support of the causes of liberty 
and equality. Reconstruction legislators first acted on 
this understanding of Congress’s enforcement power 
when they approved the Thirteenth Amendment. The 
first section, of course, decreed the abolition of



17

slavery, while the second added, in language 
borrowed from Prigg (as well as McCulloch), that 
“Congress shall have the power to enforce this article 
by appropriate legislation.” U.S. Const, amend. XIII, 
§ 2 .

At the same time legislators discussed the power 
to enforce the Fourteenth Amendment, they 
displayed their understanding of the power to enforce 
a constitutional provision “by appropriate legislation” 
when enacting the Civil Rights Act of 1866. See Br. 
for the Federal Appellee, at 17-18. The Act, which 
applied to northern and southern States alike, 
recognized as citizens all persons born in the United 
States, and prohibited both state officials and private 
persons from depriving anyone, on the basis of race, 
of the rights to make and enforce contracts, sue in 
court, give evidence, and own real and personal 
property. These protections extended far beyond the 
self-executing provisions of the Thirteenth 
Amendment; in today’s terms, they were 
“prophylactic” enforcement measures. See, e.g., Jones 
v. Alfred H. Mayer Co., 392 U.S. 409, 439-40 (1968) 
(“[T]he majority leaders in Congress—who were, 
after all, the authors of the Thirteenth Amendment— 
had no doubt that its Enabling Clause contemplated 
the sort of positive legislation that was embodied in 
the 1866 Civil Rights Act.”); Amar, Intratextualism, 
112 Harv. L. Rev. at 823 (the 1866 Act, which “swept 
far beyond merely prohibiting slavery and 
involuntary servitude,” illustrates the 39th 
Congress’s “broad view” of the enforcement power).

The legislators, who would shortly approve the 
Fourteenth Amendment’s near-identical enforcement 
clause, pointed to McCulloch and Prigg1 s expansive



18

construction of congressional power as the proper 
framework for assessing whether the 1866 Act 
qualified as “appropriate legislation.” Republicans 
drew on “the celebrated case of McCulloch vs. the 
State of Maryland” to explain why Congress had 
power to enact the 1866 Act. Cong. Globe, 39th Cong., 
1st Sess. 1118 (1866) (statement of Rep. Wilson).6 
Under McCulloch, Representative Wilson noted, 
Congress was the “sole judge” of the necessity of a 
measure that was indisputably directed at a 
legitimate end. Id. Wilson’s speech pointedly 
explained that Prigg’s broad understanding of the 
congressional enforcement power, previously a 
weapon against liberty, could now be applied in 
freedom’s service: “We will turn the artillery of 
slavery upon itself.” Id. Representative Wilson 
further elaborated, “And now, sir, we are not without 
light as to the power of Congress in relation to the 
protection of these rights. In the case of Prigg vs. 
Commonwealth of Pennsylvania—and this it will be 
remembered was uttered in behalf of slavery—I find 
this doctrine, and it is perfectly applicable to this 
case.” Cong. Globe, 39th Cong., 1st Sess. 1294 (1866).

6 One reason the Fourteenth Amendment was adopted was to 
put beyond doubt the constitutionality of the Civil Rights Act of 
1866. Though Representative Bingham doubted whether the 
Thirteenth Amendment provided a sufficient basis for the 1866 
Act, Representative Eliot’s view is typical of Republican 
opinion—that the Fourteenth Amendment was not necessary to 
support the Act: “I voted for the civil rights bill, and I did so 
under a conviction that we have ample power to enact into law 
the provisions of that bill. But I shall gladly do what I may to 
incorporate into the Constitution provisions which will settle 
the doubt which some gentlemen entertain upon that question.” 
Cong. Globe, 39th Cong., 1st Sess. 2513 (1866) (statement of 
Rep. Eliot).



19

Representative Wilson punctuated his point by 
reading from Justice Story’s opinion in Prigg, which, 
in turn, invoked Chief Justice Marshall’s opinion in 
McCulloch. Id.

The debate proceeded along these lines, 
continually re-emphasizing the need for broad 
congressional powers. Representative Shellabarger 
stated that the relevant question was whether the 
Act’s provisions fell within “the rule laid down by the 
Supreme Court in innumerable cases, that in order 
to entitle this Government to assume a power as an 
implied power of this Government it ‘must appear 
that it is appropriate and plainly adapted to the 
end.’” Cong. Globe, 39th Cong., 1st Sess. 1294 (1866) 
(quoting Story, supra note 5, at 416). Senator 
Trumbull similarly viewed the enforcement clause as 
a grant of power “to secure freedom to all people in 
the United States,” stating that the clause “vests 
Congress with the discretion of selecting that 
‘appropriate’ legislation, which it is believed will best 
accomplish the end.” Id. at 475; see also id. at 43 
(1865) (Section 2 of the Thirteenth Amendment “was 
inserted expressly for the purpose of conferring upon 
Congress authority by appropriate legislation to 
carry the first section into effect. . . . What that 
‘appropriate legislation’ is, is for Congress to 
determine, and nobody else.”); id. at 1124 (1866) 
(statement of Rep. Cook) (“Congress should be the 
judge of what is necessary” for securing the rights of 
freemen to former slaves).

This understanding of the text’s contemporary 
meaning sheds additional light on the intentions of 
the Fourteenth Amendment’s congressional 
proponents. Given the widely shared meaning of the



20

words the Framers chose, it is clear that they 
intended to confer broad discretionary powers— 
including the power to enact prophylactic measures. 
As Senator Howard emphasized, Section 5 is “a 
direct affirmative delegation of power to Congress to 
carry out all the principles” of Section 1; the 
Amendment gives the national legislature “authority 
to pass laws which are appropriate to the attainment 
of the great object of the amendment”; and “Congress 
[has] the responsibility of seeing to it, for the future, 
that all the sections of the amendment are carried 
out in good faith.” Cong. Globe, 39th Cong., 1st Sess. 
2766, 2768 (1866) (statements of Sen. Howard).

C. The Drafting History of the Fourteenth 
Amendment Confirms That the 
Enforcement Power Was Understood To 
Be Broad and Central to the 
Amendment’s Goals

Before Congress considered the wording it 
ultimately adopted as the Fourteenth Amendment, 
the House debated an initial draft. Nothing in the 
drafting history of the Fourteenth Amendment 
implies a narrow construction of congressional power 
to enforce its guarantees.

To the contrary, congressional power was so 
central to the Fourteenth Amendment’s drafting 
history that the Joint Committee on Reconstruction’s 
initial draft was solely a grant of congressional 
authority. On February 26, 1866, Bingham proposed 
this text:

The Congress shall have power to make all laws 
which shall be necessary and proper to secure to 
the citizens of each State all privileges and



21

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.

Cong. Globe, 39th Cong., 1st Sess. 1034 (1866). 
Introducing the initial draft, Bingham stressed the 
importance of giving Congress the power to act to 
protect constitutional rights against state 
infringement, in similar terms to those he used later 
to defend the new proposal: “Sir, it has been the want 
of the Republic that there was not an express grant 
of power in the Constitution to enable the whole 
people of every State, by congressional enactment, to 
enforce obedience to these requirements of the 
Constitution.” Id. For Bingham, congressional 
enforcement power was so significant that an earlier 
grant of authority might have averted the national 
catastrophe of the Civil War: “Nothing can be plainer 
to thoughtful men than that if the grant of power had 
been originally conferred upon the Congress of the 
nation, and legislation had been upon your statute- 
books to enforce these requirements of the 
Constitution in every State, that rebellion, which has 
scarred and blasted the land, would have been an 
impossibility.” Id.

By granting Congress the power to make all laws 
“necessary and proper” to secure constitutional rights, 
the initial draft was similar to the final version of 
Section 5 in that it would have incorporated a broad 
construction of powers under McCulloch. The wide 
discretion these words would have given to Congress 
did not go unnoticed. See Cong. Globe, 39th Cong., 
1st Sess. 1065 (statement of Rep. Hale) (“It has been 
settled judicially . . . that the words ‘necessary and 
proper,’ which are found in this amendment, as well



22

as in the original Constitution, by no means imply 
indispensable necessity . . . [I]t has been expressly 
settled that it means simply ‘needful,’ ‘requisite,’ 
conducive to.”).

The initial draft met with skepticism from both 
sides of the House on other grounds. Democrats, and 
some Republicans, expressed concern with the initial 
draft’s language, not because it used the phrase 
“necessary and proper,” but because it would have 
granted authority to “secure . . .  to all persons in the 
several States equal protection in the rights of life, 
liberty, and property.” On one reading of this text, 
the draft would have granted sweeping power to pass 
equal legislation upon all matters regarding life, 
liberty, and property in the States. See Cong. Globe, 
39th Cong., 1st Sess. 1064 (1866) (statement of Rep. 
Hale) (“[I]t is a grant of power in general terms—a 
grant of the power to legislate for the protection of 
life, liberty, and property, simply qualified with the 
condition that it shall be equal legislation.”); see also 
id. at 1082 (statement of Sen. Stewart) (“The only 
way this could be accomplished, would be for 
Congress to legislate fully upon all subjects affecting 
life, liberty, or property, and in this way secure 
uniformity and equal protection to all persons in the 
several states.”).

Attempting to respond to this criticism, 
Representative Bingham rejected that interpretation 
of the initial draft, stating that it was “simply a 
proposition to arm the Congress of the United States, 
by the consent of the people of the United States, 
with the power to enforce the bill of rights as it 
stands in the Constitution today.” Cong. Globe, 39th 
Cong., 1st Sess. 1088 (1866). Despite this explanation,



23

the initial draft’s ambiguous wording appears to 
have contributed to its postponement and the final 
version of the Amendment attempted to eliminate 
the ambiguity that gave rise to these concerns.

Another reason that the initial draft was 
postponed, and eventually superseded, was that it 
did not go far enough to secure liberty and equality. 
The difficulty with a constitutional amendment 
limited to granting legislative power was that any 
enforcement legislation could be repealed by a bare 
majority in Congress. Representative Hotchkiss 
expressed this concern, provoking laughter by stating 
that Bingham was “not sufficiently radical in his 
views upon this subject.” Cong. Globe, 39th Cong., 
1st Sess. 1095 (1866). “It should be a constitutional 
right that cannot be wrested from any class of 
citizens, or from citizens of any State by mere 
legislation. But this amendment proposes to leave it 
to the caprice of Congress; and your legislation upon 
the subject would depend on the political majority of 
Congress, and not upon two thirds of Congress and 
three fourths of States.” Id.

Representative Hotchkiss agreed that Congress 
should have an enforcement power, and stated that 
he would vote with Bingham to enact laws enforcing 
constitutional rights. Cong. Globe, 39th Cong., 1st 
Sess. 1095 (1866). But the absence of self-executing 
protections against state infringement led Hotchkiss 
to suggest postponing consideration of the initial 
draft, so that a new draft could be formulated, 
securing constitutional rights against a future 
congressional majority that might be hostile to racial 
equality. Id. In view of these various objections, the 
House voted 110-37 to postpone consideration of the



24

initial draft. Id. Many of the Fourteenth 
Amendment’s key supporters, including 
Representatives Bingham and Stevens, voted in 
favor of postponement. Id.

As ultimately adopted, the Fourteenth 
Amendment responded to the objections voiced by 
members of the House against the initial draft.7 By 
spelling out separately the Due Process Clause and 
the Equal Protection Clauses, the new proposal 
avoided the interpretation that the Amendment 
would give Congress overly broad power to pass 
uniform legislation on all matters affecting life, 
liberty, and property within the States. 8 More 
fundamentally, Section 1 of the Amendment provided 
self-executing protections for constitutional rights, 
meeting the concern that a future Congress could 
repeal any legislation Congress passed under an 
enforcement-only amendment. See, e.g., Cong. Globe,

7 The final version of the Amendment, of course, did more than 
respond to these objections, adding three entirely separate 
sections. See U.S. Const, amend. XIV, §§ 2-4. Section 2 
established new rules for apportioning Representatives to the 
States; Section 3 prevented the election or appointment to any 
federal or State office of any person who had held any of certain 
offices and then engaged in insurrection, rebellion or treason; 
and Section 4 confirmed that neither the United States nor any 
State would pay damages for the loss of slaves or debts that had 
been incurred by the Confederacy.
8 By spelling out due process and equal protection rights, 
Bingham attempted to specify the subjects over which Congress 
had enforcement power. These protections are, of course, 
nonetheless “phrased at a high level of generality, 
encompassing or incorporating a broad array of constitutional 
rights.” Br. for the Federal Appellee, at 22.



25

39th Cong., 1st Sess. 2462 (1866) (statement of Rep. 
Garfield) (constitutionally guaranteed protections of 
civil liberties should be adopted to ensure that a 
future majority in Congress could not repeal the 
provisions of the Civil Rights Act).

Though it provided an extra layer of protection 
for constitutional rights that the initial draft lacked, 
the final version of the Fourteenth Amendment did 
not in any way detract from the importance of 
Congress’s power to enforce the right to equal 
protection of the laws and other constitutional rights. 
The new proposal provided explicitly that Congress 
would have power to enforce the substantive 
provisions of the Amendment, using language that, 
as discussed above, was widely understood to 
incorporate a broad view of congressional power and 
a deferential approach to judicial scrutiny of 
congressional exercises of that power. See U.S. Const, 
amend. XIV, § 5. Those who spoke in favor of the new 
version of the Amendment continued to stress both 
the breadth of Section 5’s enforcement power and its 
central importance to the Amendment. Indeed, the 
new version was modeled on the nearly-identical 
clause of the Thirteenth Amendment, which was 
understood by its Framers to give Congress power to 
secure freedom to the former slaves.

Review of the drafting history thus clarifies that 
the change from the initial draft’s wording from 
“necessary and proper to secure” constitutional rights 
to “appropriate legislation” to “enforce” rights did not 
change Congress’s power to remedy or deter 
constitutional violations—the “great want” in the 
Constitution that Bingham sought to remedy. See 
McConnell, Institutions and Interpretation, 111 Harv.



26

L. Rev. at 177-81. The Fourteenth Amendment gave 
Congress the authority to enact “appropriate” laws, a 
word that was synonymous with— and certainly no 
narrower than—the term “necessary and proper.” See 
Caminker, “Appropriate” Means-Ends Constraints, 
53 Stan. L. Rev. at 1161. As authoritatively 
interpreted by the McCulloch Court, the term 
“necessary and proper” was interchangeable with the 
term “appropriate.” See 17 U.S. at 413-21. The 
debates on both drafts reflect this understanding. See, 
e.g., Cong. Globe, 39th Cong., 1st Sess. 586 (1866) 
(statement of Rep. Donnelly) (using the phrase 
“appropriate legislation” when discussing the initial 
draft); id. at 2766 (statement of Sen. Howard) (using 
the phrase “necessary and proper” when discussing 
the new proposal).

Similarly, the terms “secure” (used in the initial 
draft) and “enforce” (used in the Thirteenth 
Amendment and in the Fourteenth Amendment’s 
final form) were considered equivalent during the 
debates. Bingham stated that the initial draft 
granted Congress “the power to enforce the bill of 
rights,” Cong. Globe, 39th Cong., 1st Sess. 1088 
(1866); the final version was said by one 
Representative to provide for “securing an equality of 
rights to all citizens.” Id. at 2502 (statement of Rep. 
Raymond).

The new text of Section 5 thus paralleled the 
Thirteenth Amendment’s enforcement clause. As 
explained above, the Thirteenth Amendment’s 
enforcement clause was plainly understood to invoke 
McCulloch’s understanding of broad congressional 
power to choose “appropriate” means. As this Court 
has explained, “[t]he substitution of the ‘appropriate



27

legislation’ formula was never thought to have the 
effect of diminishing the scope of this congressional 
power.” Katzenbach v. Morgan, 384 U.S. 641, 650 n.9 
(1966) (citing Cong. Globe, 42nd Cong., 1st Sess. App. 
83 (1871)).

D. The Fourteenth Amendment’s
Ratification Debates Confirm That 
Congress Would Have Broad Power to 
Enforce the Fourteenth Amendment

The ratification debates provide further evidence 
of the contemporary understanding of Congress’s 
broad power to enforce the Fourteenth Amendment’s 
substantive guarantees. In the North, the 
enforcement clause was little discussed. In the South, 
however, the legislative power that Section 5 gave 
Congress became a focal point for opposition to 
ratification; Democrats objected strenuously to the 
broad power they understood that Congress would 
have if the Amendment were ratified.

In state after state, Southern opponents of the 
Fourteenth Amendment expressed the fear that the 
authority to pass “appropriate legislation” would give 
Congress what they considered to be an excessive 
degree of power to define the obligations of States 
with respect to their citizens. See James E. Bond, No 
Easy Walk to Freedom: Reconstruction and the 
Ratification of the Fourteenth Amendment 254-55 
(1997). One Texas Senator summed up these 
concerns: “What is ‘appropriate legislation?’ The 
Constitution is silent; therefore, it is left for the 
Congress to determine.” Journal of the Senate of the 
State of Texas, 11th Legis., 421-22 (1866). In the 
same vein, Governor Jenkins of Georgia worried that 
Congress would have too much power over the States:



28

“It will be contended that [members of Congress] are 
the proper judges of what constitutes appropriate 
legislation. If therefore, the amendment be adopted, 
and a fractional Congress . . .  be empowered ‘to 
enforce it by appropriate legislation,’ what vestige of 
hope remains to the people of those States?” Bond, 
supra, at 238. In many southern States, the 
ratification debates included similar statements 
recognizing that the Amendment confers broad 
prophylactic power on Congress. See id, at 34 
(Mississippi); id. at 56-57 (North Carolina); id. at 87 
(Louisiana); id. at 104 (Alabama); id. at 126-27 
(South Carolina); id. at 148-51 (Virginia); id. at 173- 
74 (Florida); id. at 192-93 (Arkansas).

E. Legislative Interpretations of Section 5 
in the Reconstruction Era Confirm the 
Contemporary Understanding of 
Congress’s Enforcement Power

After the Fourteenth Amendment was ratified, 
legislative statements from the Reconstruction era 
reinforced the Framers’ understanding of the text of 
Section 5: that Congress had been given wide 
latitude to select appropriate measures to achieve 
the purpose of protecting constitutional rights. 
Legislators repeatedly emphasized this 
understanding of Congress’s broad power to enforce 
the guarantees of the Fourteenth Amendment. 
“When I assert that Congress has an ample power 
over this question,” emphasized Senator Sumner,

I rely upon a well known text . . . McCulloch vs. 
State of Maryland . . . .  [T]he Supreme Court will 
not undertake to sit in judgment on the means 
employed by Congress in carrying out a power 
which exists in the Constitution. . . . Here is the



29

definition of citizenship and the right to equal 
protection of the laws, . . . both placed under the 
safeguard of the nation. Whatever will fortify 
these is within the power of Congress, by express 
grant.

Cong. Globe, 42nd Cong., 2nd Sess. 728 (1872). See 
also Cong. Rec., 43rd Cong., 1st Sess. 414 (1874) 
(statement of Rep. Lawrence) (“The power to secure 
equal civil rights by ‘appropriate legislation’ is an 
express power; and Congress, therefore, is the 
exclusive judge of the proper means to employ. This 
has been settled in McCulloch vs. Maryland.”)', Cong. 
Globe, 41st Cong., 2nd Sess. 3882 (1870) (statement 
of Rep. Davis) (“No broader language could be 
adopted than this with which to clothe Congress with 
power . . . .  Congress is clothed with so much power 
as is necessary and proper to enforce the two 
amendments to the Constitution, and is to judge 
from the exigencies of the case what is necessary and 
what is proper.”); Cong. Globe, 42nd Cong., 1st Sess. 
App. 83 (1871) (statement of Rep. Bingham) (“The 
power to enforce . . .  is as full as any grant of power 
to Congress.”).

* * * * * *  *

The Fourteenth Amendment conferred broad 
power and discretion on Congress to protect the 
Amendment’s majestic guarantees through laws 
molded by legislative experience and judgment. The 
Fourteenth Amendment’s text, purpose, and history 
inform the meaning of the Fifteenth Amendment’s 
enforcement clause as well, and powerfully reinforce 
the conclusion that Congress acted comfortably 
within its power to select “appropriate” means to 
enforce the Fourteenth and Fifteenth Amendments



30

when it reauthorized Section 5 of the Voting Rights 
Act.

In the legislation at issue, Congress acted to 
protect against racial discrimination in voting— 
clearly a core purpose under the Fourteenth and 
Fifteenth Amendments. Acting within its wide 
discretion to select appropriate means, Congress 
permissibly determined that prophylactic measures 
were appropriate to protect against unconstitutional 
racial discrimination in the administration of voting. 
Pursuant to the original understanding of the 
Reconstruction enforcement provisions—that 
Congress would have broad power to determine what 
is appropriate to protect the rights to equality, 
freedom, and political participation enshrined in the 
Reconstruction Amendments—the Court should 
defer to the legislature’s reasoned judgment.

CONCLUSION

The judgment of the United States District Court 
for the District of Columbia should be affirmed.

Respectfully submitted,

Douglas T. Kendall 
Elizabeth b . Wydra 
David H. Gans 
Constitutional 

Accountability 
Center

Clifford M. Sloan 
Counsel of Record 

1440 New York Avenue, N.W. 
Washington, DC 20005 

(202) 371-7000

1301 Connecticut Ave., N.W.
Suite 502
Washington, D.C. 20036 
(202) 296-6889

Counsel for Amicus Curiae

March 25, 2009