Constitutional
Law Class Notes
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
In
the
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
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
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
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
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.
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
The
question before the Supreme Court is whether or not Congress can impose
monetary liability on the state of
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.