Constitutional Law Class Notes 4/20/04


A bit more lecturing, and then some Socratic stuff.  We have finished talking about the state action doctrine for now.  Let’s talk about…


The difference between the Thirteenth Amendment and the Fourteenth Amendment


Most constitutional rights are rights against the government.  But the Thirteenth Amendment outlaws slavery, period.  If slavery were to occur in the United States, there can be cause of actions brought directly against private slaveholders for infractions of the Thirteenth Amendment.  Sometimes over the last hundred and fifty or so years, some of these suits have actually been brought, for example in the situation where immigrant workers are kept in slave-like conditions.  Congress has the power to enforce the Thirteenth Amendment just like it has the power to enforce the Fourteenth Amendment.  Both amendments have provisions that grant new legislative authority to Congress to implement the substantive provisions of each amendment.  Since the end of the Civil War, there have been debates about how broad the new congressional powers are under these amendments as well as the Fifteenth Amendment.  For our class, we’ll focus only on § 5 of the Fourteenth Amendment and not § 2 of the Thirteenth Amendment.  But the Thirteenth Amendment is a separate provision that raises somewhat different issues.  The current doctrine of the Thirteenth Amendment is that Congress has extra remedial authority to eradicate the “badges and incidents of slavery”.  If there are conditions in American society that are consequences or vestiges of slavery, Congress may be able to directly address those consequences or vestiges.


In the Warren Court era, the Court was aggressive in expanding the power of Congress in this area.  The Warren Court said that Congress could directly legislate against private race discrimination if it is found to be a “badge or incident of slavery”.  So housing discrimination, for example, may be a subject of congressional power.   The Burger and Rehnquist Courts have narrowed these holdings.  In Patterson, the Court stuck to the old precedents only due to stare decisis.  So we should be suspicious of the continuing validity of Warren Court precedents.  It is hinted that the current Court will not expand these powers.  In order to use the Thirteenth Amendment, you will probably have to have a claim related to race discrimination.


Section 5 of the Fourteenth Amendment


This is tricky stuff, and it’s in a lot of flux right now.  This is part of the “New Federalism” jurisprudence of the Rehnquist Court, and we don’t know of the full direction of where it’s going.  We don’t know where the Tenth Amendment cases are going, and we also don’t know for sure what the contours of the “new” section 5 jurisprudence will be.  We saw that the key concept is the “congruence and proportionality test”.  That’s like the “substantial effects test” under Lopez or the “undue burden test” under Casey.  But just like those two tests, the phrase “congruence and proportionality” is just words!  What do they mean?  Neither word is in the text of the Constitution.  These are Justice Kennedy’s words that help him think about the issue.


Conceptually, what’s at stake here is the relationship between § 1 of the Fourteenth Amendment and § 5.  § 1 contains the Due Process Clause and the Equal Protection Clause: it contains the substantive rights that the states are not allowed to violate.  In the Warren Court era, they didn’t have the “congruence and proportionality test”.  Instead, they used the old “rational basis test”.  They said it was okay if Congress goes beyond § 1 itself in attempting to address similar concerns to those that animated § 1 in the first place.  Even if certain conduct would not be a violation of § 1 of the Fourteenth Amendment if it came up in direct action litigation under § 1 by a plaintiff against a state claiming, for example, a violation of equal protection, Congress may still be able to use their § 5 power.  The Warren Court would give Congress the latitude to create statutes that say that states cannot discriminate in a certain way even if a private claim on that basis would fail.  Congress was allowed to create new rights, even if they weren’t technically part of § 1!  The new law creating new rights simply had to be rationally related to a legitimate purpose.  Congress can be more robust; it just can’t take away rights.  This is the “ratcheting up” theory.  The idea is that § 1 creates a floor or a baseline.  But Congress is allowed to go up and give greater rights without any problem.


This got a little tricky with respect to the religion clause, but the Court was able to duck this for the most part.  This was accepted wisdom for 20 or 30 years.  But that’s all changed by virtue of the “congruence and proportionality test”: the scope of § 5 has shrunk significantly to get closer to the scope of § 1.  But there still is some distance between §§ 1 and 5.  There is still some notion that Congress, in implementing § 1, still has some maneuverability in its implementation in two respects: (1) in terms of creating remedies for § 1 violations, they can be someone proactive.  If there is a Fourteenth Amendment violation related to prisons, Congress require new prisons to be built.  Congress’s remedial authority to address § 1 violations is a little broader than the Court’s ability to give a remedy in a suit.  (2) The Rehnquist Court has never repudiated the idea that Congress can apply “prophylactic” measures: Congress has the power to legislate to prevent discrimination in the first place.  But how far can they go?  We’re not sure.  Part of the problem is the word “congruent”: that suggests that the scope of §§ 1 and 5 are identical!  But that doesn’t seem to be literally true.  What about proportionality?  That’s the test, but we don’t know exactly what it means.


Here are some other cases that have been active in the last few years: the Court invented the “congruence and proportionality test” in City of Boerne v. Flores.  The Supreme Court felt that Congress was “thumbing its nose” at the Court by adopting a restrictive understanding of freedom of religion that Congress didn’t like.  Congress wanted to provide by way of statute a more expansive understanding of freedom of religion.  In the Warren Court era, they would have been fine with this.


The next big case was Kimel, which involved the ADEA.  Some state workers sued state government saying that they were suffering age discrimination and they wanted a statutory remedy under the Act of Congress.  The Supreme Court said that Congress has no power under § 5 of the Fourteenth Amendment to pass laws barring age discrimination because this type of discrimination is not unconstitutional under § 1.  § 1 of the Fourteenth Amendment contains the Equal Protection Clause, but age discrimination is not a “suspect classification” and doesn’t get heightened scrutiny.  It only gets evaluated on the rational basis test.  When the rational basis test is used, almost all discrimination will be found acceptable.  Since there is no § 1 violation, then the federal government has no power to outlaw age discrimination when it’s done by state governments.  So the Supreme Court said that in effect, Congress was trying to make up their own jurisprudence.


If Congress has no power under § 5 to outlaw age discrimination, then how can that same statute be valid with respect to age discrimination by private employers?  If Ford or Microsoft or General Dynamics were to discriminate on the basis of age, they can be sued and held liable.  How does that work?  Consider the state action doctrine.  General Dynamics can’t violate the Equal Protection Clause in any respect, yet age discrimination is not unconstitutional when committed by states.  Congress has the power to prohibit age discrimination under the Commerce Clause based on the “substantial effects test” and aggregation.  Congress has the power to prohibit discrimination in any form of employment since employment is a matter of commerce.  But if Congress has the power to prevent discrimination on the basis of age with private employers, why doesn’t Congress have Commerce Clause authority to outlaw age discrimination when done by state actors (like OSU or a police department)?  There’s a federalism principle at work here.  Ohio State, as an economic actor, has as much effect under the aggregation principle as big businesses like McDonald’s or General Dynamics.  There is no Commerce Clause problem in the sense that Congress has Commerce Clause authority to prohibit age discrimination by a state government, but there’s a question of Congress’s ability to provide remedies under the Eleventh Amendment.


Here’s what’s going on: Congress has Commerce Clause power to outlaw employment discrimination because it affects the economy (even if done by state actors and even when done on the basis of age).  But when Congress acts pursuant to the Commerce Clause, Congress cannot abrogate state sovereign immunity.  This is a doctrine that state governments cannot be sued without their consent.  So how could you ever win a constitutional claim against a state under the state action doctrine?  There are two rules where there is a huge difference between the Commerce Clause on the one hand and § 5 of the Fourteenth Amendment on the other.  What happened was that the Eleventh Amendment was adopted after the original Constitution and after the Commerce Clause.  The Eleventh Amendment concerns the concept of state sovereign immunity and ratifies the idea that states are immune from suit without their consent.  The Court has said that Congress can’t take away that immunity if a state doesn’t agree.  But then the Fourteenth Amendment comes after the Eleventh Amendment.  The Eleventh Amendment specifically gives Congress power under § 5 to enforce those rights.  The Court believes that the sovereign immunity amendment takes priority over the Commerce Clause, but the Fourteenth Amendment, in turn, takes priority over the Eleventh Amendment!  States are not allowed to assert their sovereign immunity when Congress is acting with respect to the Fourteenth Amendment.  But the states are allowed to assert their sovereign immunity if the Fourteenth Amendment doesn’t kick in.


So there’s no Eleventh Amendment problem when you sue a private company: it’s all pursuant to the Commerce Clause.  But you can’t sue a state in federal court without its consent under the Commerce Clause or any of the Article I powers in the original Constitution.  That means that if you want to sue a state government, you must say that Congress has § 5 power to allow states to be sued.  When you talk about age discrimination, § 5 power falls away with respect to state governments.  Don’t worry about sovereign immunity too much for this class.  Sovereign immunity means you can’t sue states unless you can find authority under § 5 of the Fourteenth Amendment.


In University of Alabama v. Garrett, the Court said that discrimination on the basis of disability is reviewed for equal protection purposes under the rational basis test.  It is not a classification that gets heightened scrutiny.  So Congress has no power to outlaw disability discrimination across the board like it wanted to.  This can’t be done under § 5 because disability discrimination is not a problem under § 1.  This is where the congruence and proportionality idea comes to the fore.  Maybe there are certain instances of disability discrimination that are irrational and thus unconstitutional.  But Congress cannot act “across the board”, encompassing some discrimination that may have a rational basis.


Tennessee v. Lane is at the Supreme Court right now.  It involves the ADA, but not employment discrimination.  It involves access to buildings.  One part of the ADA required buildings to be retrofitted to be wheelchair-accessible.  The state of Tennessee didn’t bother to follow that requirement with respect to access to its courtrooms.  A person in a wheelchair was indicted for a criminal offense.  The courtroom that was hearing the case was on the second floor of the courthouse, but there were no elevators in the courthouse and the wheelchair couldn’t go up the stairs.  The only way to get to the courtroom was to either crawl up the stairs or be carried.  The building was not accessible.  The claim was that this was both a denial of due process and a violation of the ADA for Tennessee not to accommodate his disability with respect to access to the courtroom.


The question before the Supreme Court is whether or not Congress can impose monetary liability on the state of Tennessee not withstanding sovereign immunity when the issue is not merely employment, but access to basic public services.  It’s possible that the Supreme Court is going to say that when you have access to these core government operations that refusing to reconfigure buildings to make them wheelchair accessible is a denial of fundamental rights under substantive due process, and thus Congress’s attempt to intervene is a core § 1 problem.  It’s very murky right now.  It’s possible that the Court will put some brakes on their § 5 jurisprudence.  They may say that they will let Congress adopt certain remedial measures when there are core issues at stake.  The ADA is a very broad statute.  There will be a question for at least some members of the Court if Congress acted proportionally and congruently.  Foley predicts that everything will depend on the swing votes.  The liberals will tend to be expansive and the conservatives will tend to read the Fourteenth Amendment narrowly.  We will probably get this decision near the end of June.


Eleventh Amendment jurisprudence is so screwy that the doctrine of sovereign immunity only has force when you sue the state for money damages because back in the 19th century, the Court created a fiction that when you sue officers of a state government (a person), that even though you’re suing them in an official capacity, those kinds of suits are not suits against the government itself.  Thus, the doctrine of sovereign immunity doesn’t apply.  The Eleventh Amendment is never a barrier when you are asking a government official to do something, unless money is at stake.  If money is at stake, the Eleventh Amendment can place a limit on what you can do.


Back to Class Notes