TRACHMAN ON SECTION FIVE

Will Trachman's Findlaw article on Tennessee v. Lane does not answer a crucial question: why, precisely, should the people accept court-imposed limits on Congress's power under the Fourteenth Amendment? Or: why should the Court -- and not Congress -- have power to define the limits of the 14th Amendment?

Stated simply, Section 5 of the 14th Amendment can be read to allow Congress to give content to the rights protected by the rest of the amendment. Trachman admits that such a reading was arguably the "original intent" of the framers of the 14th Amendment.

Let's look at some history here. Congress and the Court have been at this question in earnest since the early 1990s. In 1993, when Congress disagreed with the Court's interpretation of religious liberty, Congress tried to tell the Court that its -- Congress's -- views on religious liberty should prevail. The case that Congress was reacting to was Employment Division v. Smith, (1990) in which a divided Court ruled that the 1st Amendment didn't require states to create exceptions from generally applicable criminal laws when those laws burdened religious practices. The Court upheld drug laws that prevented members of a native tribe from receiving unemployment compensation because they had been dismissed from their job for taking peyote. In Smith, the Court had quite self-consciously moved away from one line of precedent that was favorable to religion and embraced arguments that were less favorable toward religion.

Congress told the Court that it should have taken the other road. The Court was not persuaded. It struck down the law that Congress passed in reaction to Smith (the Religious Freedom Restoration Act, or RFRA, struck down in Boerne v. Flores). But Congress responded to Boerne with a similar law that applied only to property and to prisoners (the Religious Land Use and Institutionalized Persons Act, or RLUIPA). So far, the courts have supported this latter law.

I suppose that this story could be read in a variety of ways. One way to read it is to say that when Congress really wants something, it will find a way to get it, and eventually the courts are going to fall in line. I wouldn't want to make too much of that claim. At any rate, here, Congress wanted to protect more freedom than the Court wanted to protect. If the courts are willing to uphold RLUIPA -- which is essentially RFRA narrowed to two policy areas -- why couldn't they have saved us all the trouble and just allowed Congress to pass RFRA in the first place?

Trachman advances two main arguments concerning the danger of allowing Section 5 to be read in the way that it was intended to be read.

First, he argues that broad Section 5 power would allow Congress to reach "private action," to outlaw actions by private individuals rather than simply action by government. Why is that significant? Because according to Trachman, the Fourteenth Amendment only allows Congress to reach government action. He doesn't tell you that the main support for this argument is . . .wait for it. . .a ruling by the Supreme Court itself that interpreted the 14th Amendment in this narrow fashion, the Civil Rights Cases (1883).

Why would you want to know such a thing? In the Civil Rights Cases, the Court itself narrowed the meaning of the 14th Amendment. The big question for us is whether Congress or the Court should have the power to interpret the scope of the 14th Amendment. Here, Trachman is saying that Congress shouldn't be trusted with the power to interpret the 14th Amendment because it might go against what the Court says about the 14th Amendment. Indeed. That's the logical result of siding with Congress. It's no answer to Congress -- or to the public -- to say that Congress shouldn't have that power because the Court has already told Congress what the amendment means. The argument seems circular to me.

But there's another reason why Trachman would have a hard time discussing the Civil Rights Cases. Just as the courts let Congress have its way with RLUIPA (so far), the courts have also let Congress have its way with the precise issue that was at stake in the Civil Rights Cases -- eventually, that is. The Civil Rights Cases struck down the Civil Rights Act of 1875, which outlawed discrimination in places of public accommodation. Sound familiar? It should. In 1964, Congress basically passed the same law with a different constitutional justification -- this time relying on congressional power over interstate commerce rather than congressional power to enforce the 13th and 14th Amendments. Courts have left the law standing. (See here, for example.)

If it was so dangerous to allow Congress to reach private action in the Civil Rights Cases, why should the courts allow Congress to reach private action through the Civil Rights Act of 1964? Clearly, outlawing discrimination in places of public accommodation is more easily defended as a civil rights measure, grounded in the spirit of the reconstruction amendments, than as a measure that regulates interstate commerce. After all, the 13th and 14th Amendments were intended to secure civil rights. The commerce power was intended to allow Congress to regulate. . .well. . .commerce.

Now Trachman's second argument against broad Section 5 power is that Congress could use the power for both conservative and liberal ends:

If granted this power, Congress is likely to abuse it -- and not only for liberal goals. Suppose Congress were to preclude state schools from using the type of race-based admissions preferences the Supreme Court recently approved. Congress could justify this conservative measure as an attempt to enforce its interpretation of the Equal Protection Clause.

So Congress could outlaw affirmative action and say that it is enforcing the 14th Amendment. Is that so bad? Or, put differently, is it worse to allow the Supreme Court -- and the Supreme Court alone -- the power to determine whether or not affirmative action offends the 14th Amendment? If you disagree with the Court's ruling, you would need to a) push a constitutional amendment (unlikely to pass), b) wait for the Court's membership to change and hope that liberal justices will overrule the bad precedent, or c) press Congress to make a law that challenges the Court, similar to way that RLUIPA challenges the Court. RLUIPA-type laws are not all that common, it seems to me.

If Congress can define Section 5, however, and does so poorly -- by outlawing affirmative action, say -- then members of Congress can be held accountable at the polls.

I think that the battle has been fought to a draw here, and Trachman doesn't show us a way out. If the main reason for withholding power from Congress is that Congress might make laws that you don't like, then the logical question is, Will the Court do any better? And if both are likely to make rulings that you don't like, what then? Go with the more entrenched or the more responsive institution?

Beats me.

What's certain is that the Court has also "abused" its power to interpret the 14th Amendment. Seems to me that the Civil Rights Cases are proof of that. It's good that Congress gave the Court the opportunity to correct its mistake, albeit eighty years later. Perhaps life would have been a little better for some citizens if the Court had gotten it right the first time.

I don't want to be too harsh on Trachman. Clearly it's received wisdom that courts are supposed to interpret the Constitution; it probably sounds odd to argue that Congress should be let in on the act. But after reading Trachman's piece, you should wonder still whether the received wisdom is worth defending.

MORE: Trachman responds; scroll up and see!