How many of you have noticed over the past few articles on the 14th Amendment that the Court has been the primary wielder of this amendment’s power? Right? I mean, most of the major shifts in power from state to federal have occurred, not by legislative statue, but Supreme Court interpretation. Abortion, marriage, contraceptives, integration or desegregation (this was a federal law) are a few that come to mind.
Section Five of the Fourteenth Amendment would presume otherwise.
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
The point I want to emphasize here is this: in the same way the framers created Congress to be the pre-eminent branch of government for specific and important reasons, Congress–and subsequently the state legislatures–gave exclusive power to Congress to enforce the provisions stipulated in the Fourteenth Amendment. In other words, the clause, “nor shall any State deprive any person of life, liberty or property, without due process of law…” holds power because Congress has the power to write laws that enforce this provision. Much like the enumerated powers of Article 1, Section 8, in which Congress is empowered to make “all laws necessary and proper for the carrying out of the foregoing powers”, Congress is empowered to make all laws necessary and proper to enforce the provisions of the Fourteenth Amendment.
Specifically, this means Congress is empowered to write laws that restrict or limit state power, when that state power has violated an individual’s life, liberty or property. This provision significantly shifts power from the state governments to the federal government, but was a shift the legislators and state legislatures at the time felt was necessary to protect citizens’ liberty from a state government that would violate it. The protections only extended to codified “rights” from the Bill of Rights or from Court precedent, so naturally, this phrase is not one of arbitrary, unlimited power. Rather, it just specifies that Congress, within the limitations of the Fourteenth Amendment, can make law to enforce the Fourteenth Amendment.
So, I’m going to swing this back around to my initial question. Have you noticed that most of the major shifts in American politics and the power dynamic between the states and federal government has not come from Congressional law but judicial rulings? In other words, the power of the Fourteenth Amendment really doesn’t come from Congress, but the Court. Congress has written a few laws, such as The Voting Rights Act of 1965, that come from the Fourteenth Amendment’s enumerated powers; however, the vast majority of laws in place today, supported by the Fourteenth Amendment, are not, in fact, laws, but rather, Court rulings. And these Court rulings don’t deal with the Constitutionality of federal law but the Constitutionality of state, local and private action.
Interesting right? What if, instead of handling state and local action, in federal courts, Congress attempted to write laws preventing states from writing laws that inhibited gay marriage, abortion or any of the Court sanctioned rights that now exist in the U.S.? How would that go over? Based on the enforcement clause of the Fourteenth Amendment, this is what should happen. How would the Court handle this kind of Congressional action? My guess is, based on rulings such as Shelby County, Alabama v. Holder (2013)–“which held that the formula in the Voting Rights Act defining which states and counties have a history of discrimination in voting, and are therefore required to get approval before changing their election systems, is unconstitutional“–that they’d say Congress is overreaching the limits on federal power with such laws.
Fascinating right? Especially given the fact that the Court has effectively made these very laws with their rulings, causing the same, if not more significant, shift in power as a Congressional law would.
And that’s just it. That’s why it’s been the Court using the enforcement clause rather than Congress, because Congressional action can receive pushback and scrutiny from a litany of other branches of government, while the Court… well, the Court is nigh untouchable. Once they’ve declared something to be, that something to be is it–unless they themselves choose to reverse it.
And Congress sits by and lets that happen. Congress holds the power in our federal government, technically. Congress could decide to take the reins for once and make the hard decisions, the risky decisions, that, in turn, may be struck down by the Court or courts, or challenged by state and local governments.
No, Congress would rather keep their hands clean and let the least challenged branch make all the broad, era-reforming, zeitgeist setting laws (technically, “rulings”) while they sit back, hands up, claiming that there was nothing they could do anyway.
Friends, Congress isn’t going to act if we keep expecting them not to act. Congress is the only branch that must directly answer to us, which is why it’s the only branch empowered to make laws that will directly affect us. But, since we don’t know the Constitution, or the nuance in this amendment, we’ve come to expect and legitimize the Court’s theft of the Fourteenth Amendment’s enforcement power.
We shrug and shirk the responsibility, and so, Congress shrugs and shirks the responsibility.
It’s high time we man-up, woman-up, employer-up and start demanding that those we employ start following the rules we gave them and staying within the boundaries we set.
The Liberty Belle
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I made a similar comment on social media after the “Alito Paper” were leaked. The 14th has been misused and abused by the Court for too long and we have allowed it to happen.
By not confronting Congress and forcing them to do their jobs, we have allowed this threat to Liberty and the Republic itself to propagate.