Amdt14.S5.1.1 Generally

Fourteenth Amendment, Section 5:

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

In the aftermath of the Civil War, Congress, in addition to proposing to the states the Thirteenth, Fourteenth, and Fifteenth Amendments, enacted seven statutes designed in a variety of ways to implement the provisions of these Amendments. 1 Several of these laws were general civil rights statutes that broadly attacked racial and other discrimination on the part of private individuals and groups as well as by the states, but the Supreme Court declared unconstitutional or rendered ineffective practically all of these laws over the course of several years. 2 In the end, Reconstruction was abandoned and with rare exceptions no cases were brought under the remaining statutes until fairly recently. 3 Beginning with the Civil Rights Act of 1957, however, Congress generally acted pursuant to its powers under the Commerce Clause 4 until Supreme Court decisions indicated an expansive concept of congressional power under the Civil War amendments, 5 which culminated in broad provisions against private interference with civil rights in the 1968 legislation. 6 The story of these years is largely an account of the state action doctrine in terms of its limitation on congressional powers; 7 lately, it is the still-unfolding history of the lessening of the doctrine combined with a judicial vesting of discretion in Congress to reinterpret the scope and content of the rights guaranteed in these three constitutional amendments.

Footnotes

  1.  Civil Rights Act of 1866, ch. 31, 14 Stat. 27; the Enforcement Act of 1870, ch. 114, 16 Stat. 140; Act of February 28, 1871, ch. 99, 16 Stat. 433; the Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13; Civil Rights Act of 1875; 18 Stat. 335. The modern provisions surviving of these statutes are 18 U.S.C. §§ 241, 242, 42 U.S.C. §§ 1981-83, 1985-1986, and 28 U.S.C. § 1343. Two lesser statutes were the Slave Kidnaping Act of 1866, ch. 86, 14 Stat. 50, and the Peonage Abolition Act, ch. 187, 14 Stat. 546, 18 U.S.C. §§ 1581-88, and 42 U.S.C. § 1994.
  2.  See generally R. Carr, Federal Protection of Civil Rights: Quest for a Sword (1947).
  3.  For cases under 18 U.S.C. §§ 241 and 242 in their previous codifications, see United States v. Mosley, 238 U.S. 383 (1915); United States v. Gradwell, 243 U.S. 476 (1917); United States v. Bathgate, 246 U.S. 220 (1918); United States v. Wheeler, 254 U.S. 281 (1920). The resurgence of the use of these statutes began with United States v. Classic, 313 U.S. 299 (1941), and Screws v. United States, 325 U.S. 91 (1945).
  4.  The 1957 and 1960 Acts primarily concerned voting; the public accommodations provisions of the 1964 Act and the housing provisions of the 1968 Act were premised on the commerce power.
  5.  United States v. Guest, 383 U.S. 745 (1966); Katzenbach v. Morgan, 384 U.S. 641 (1966). The development of congressional enforcement powers in these cases was paralleled by a similar expansion of the enforcement powers of Congress with regard to the Thirteenth Amendment, Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). South Carolina v. Katzenbach, 383 U.S. 301 (1966).
  6.  82 Stat. 73, 18 U.S.C. § 245.
  7.  On the state action doctrine in the context of the direct application of § 1 of the Fourteenth Amendment, see discussion, supra.