Law Class Notes 4/20/04
bit more lecturing, and then some Socratic stuff. We have finished talking about the state
action doctrine for now. Let’s talk
The difference between the
Thirteenth Amendment and the Fourteenth Amendment
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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