Christopher R. Green (Ohio State University) has posted Clarity and Section Five (39 Notre Dame Journal of Law, Ethics & Public Policy 147 (2025)) on SSRN. Here is the abstract:
City of Boerne v. Flores (1997) requires that congressional use of its Fourteenth Amendment Section Five power to “enforce, by appropriate legislation, the provisions of this article” must be “congruent and proportional” to judicial enforcement of Section One. The Boerne standard has six big problems:
(1) The words “congruent” and “proportional” are slippery, unclear mathematical metaphors.
(2) Boerne claims to be consistent with earlier enforcement-power precedent, but the Court admitted in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder that Boerne’s standard and a standard taken from that earlier precedent “do not agree.”
(3) Boerne’s discussion of particular Reconstruction evidence is selective and misleading. The Court relies heavily on Garfield and Farnsworth’s 1871 understanding of the relationship between John Bingham’s proposals from February and April 1866 without noting Bingham’s energetic disagreement, a disagreement credited by leaders in Congress like future Vice President Henry Wilson, and noted by the Court itself in Katzenbach v. Morgan.
(4) Boerne’s standard more generally does not fit the history of Reconstruction, during which Congress, not the Court, was expected to take the lead in deciding the exact shape of Section One principles of equal citizenship, state lawfulness, and states’ duty to enforce the law.
(5) Boerne attacks a strawman, presenting RFRA as an attempt to change Section One, rather than clarify it.
(6) Using judicial-restraint-motivated Section One precedent to limit Congress’s Section Five power turns judicial modesty on its head.
Rather than congruence and proportionality, the concept of clarity should instead govern the relationship between the judicially enforced Section One and the congressionally empowering Section Five. It was extremely well established at the time of the Fourteenth Amendment’s adoption that judges may only declare the actions of the elected branches to be unconstitutional if the conflict between the Constitution and those actions is clear. Accordingly, courts may only enforce a subset of the actual Section One violations that occur. Similarly, courts may only declare Congress to have exceeded its Section Five enforcement power if the conduct that Congress has prohibited is clearly beyond the scope of Section One. In between these two extremes—clear violations of Section One and clear non-violations of Section One—Congress’s enforcement power includes the power of clarification. This interpretation would make sense of the many Republicans who claimed that Section One would entrench the Civil Rights Act of 1866, and so that courts would have a role independent of Congress, but that Congress would simultaneously be the chief driver of the Fourteenth Amendment’s requirements. Accordingly, if Congress were to use its Section Five power to require states to supply the “protection of the laws” to the unborn, the support for a Section One requirement of such protection would only need to be strong enough to render such a requirement not clearly wrong.
Highly recommended!
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