Amicus Curiae Brief — City of Boerne v. Flores

89, OO

cy <a

No. 95-2074

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CITY OF BOERNE, TEXAS

Petitioner,

v.

P. F. FLORES, ARCHBISHOP OF SAN ANTONIO,

Respondent,

and

UNITED STATES OF AMERICA,

Intervenor-Respondent.

On Writ of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

BRIEF OF CLARENDON FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

Jay S. Bybee Ronald D. Maines

(Counsel of Record) R. Shawn Gunnarson

6516 Millstone Avenue MAINEs & LOEB, PLLC

Baton Rouge, LA 70808 2390 M Street, N.W.

(504) 388-8707 Suite 900

Washington, D.C. 20037

(202) 223-2817

Counsel for Amicus Curiae

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TABLE OF CONTENTS

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INTEREST OF AMICUS CURIAE ...............045. |

SUMMARY OF ARGUMENT ...................... 2

pT ee eee 5

SECTION 5 DOES NOT GRANT CONGRESS THE

POWER TO ENFORCE EXTRA-CONSTITUTIONAL

RIGHTS; KATZENBACH v. MORGAN IS INCONSIST-

ENT WITH THE TEXT AND HISTORY OF THE

FOURTEENTH AMENDMENT AND SHOULD

hs tien uls do dc pa cdaseseeeocss 5

EVEN ASSUMING THAT THE MORGAN POWER

MAY BE LEGITIMATELY EXERCISED IN SOME

CASES, IT SHOULD NOT BE INVOKED TO REVISE

THIS COURT'S PRONOUNCEMENTS ON INCORPOR-

ATED RIGHTS GENERALLY, OR THE FIRST

AMENDMENT SPECIFICALLY ............... 21

CUPRA 27th UL Tess S0us acces babcdebececcwe ds 29

-ii-

TABLE OF AUTHORITIES

CASES:

Beauharnais v. Illinois, 343 U.S. 250 (1952) ....... 23

Bowen v. Gilliard, 483 U.S. 587 (1987) .......... 24

City of Rome v. United States, 446 U.S. 156 (1980) .... 2

The Civil Rights Cases, 109 U.S. 3 (1883) ...... 2,15,16

Employment Division v. Smith, 494 U.S. 872 (1990) .. 2,3

Everson v. Board of Education, 330 U.S. 1 (1947) .. 23,24

Ex Parte Oppenstein, 233 S.W. 440 (1921) ........ 19

Ex Parte Virginia, 100 U.S. 339 (1879) ........... 15

Fay v. New York, 332 U.S. 261 (1947) ........... 22

Fullilove v. Klutznick, 448 U.S. 448 (1980) ......... 2

Gitlow v. New York, 268 U.S. 652 (1925) ......... 23

Interstate Circuit, Inc., v. Dallas, 390 U.S. 676 (1968) 23

Katzenbach v. Morgan, 384 U.S. 641 (1966) ..... passim

Landmark Communications, Inc. v. Virginia,

Phe ee Fe a ae eae 25

Lassiter v. Northampton Election Board,

pS Ts PRP Te Cee eee eee 3

Marsh v. Chambers, 463 U.S. 783 (1983) ....... 23,24

Memoirs v. Massachusetts, 383 U.S. 413 (1966) ..... 23

Mullane v. Central Hanover Bank & Trust Co.,

Fae is BOO I i Hh a CRE EE) be a's 22

New York Times v. Sullivan, 376 U.S. 254 (1964) .... 24

Norwegian Nitrogen Products Co. v. United States,

Bee as EE as EC 6 ERR OER OR Ue 19

Oregon v. Mitchell, 400 U.S. 112 (1970) ........ passim

Palko v. Connecticut, 302 U.S. 319 (1937) ........ 23

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) .. 3,24

Roth v. United States, 354 U.S. 476 (1957) ........ 23

Sable Communications of Calif., Inc. v. FCC,

Ge Us $55 Ce 6 ee Ca ER RE R Rees aees 25

Smith v. California, 361 U.S. 147 (1959) ......... 23

Turner Broadcasting System v. FCC, 512 U.S.

ae ee Lee eee eee 25

United States v. Great Northern Ry. , 287 U.S.

DEE: Wa OU We a ead be Widens bectecces 19

United States v. Guest, 383 U.S. 745 (1966) ....... 18

United States v. Harris, 106 U.S. 629 (1882) ... 13,14,15

United States v. Pfitsch, 256 U.S. 547 (1921) ....... 19

United States v. Wheeler, 254 U.S. 281 (1920) ...... 15

West Virginia Bd. of Educ. v. Barnette, 319 U.S.

I ak Uk ban 6 on. de Gade Oae'c ewe 23

CONSTITUTION AND STATUTES

U.S. Const.:

i Oe ob ed ates ded wee c 14

PCED 6d aweeccetncecdcecos 25

OO ds bs tet dde'e ee bes 12,13

PE Cea Wb iW dacn ds ee ca dec 0 de « 15

DT cies cocticcoseaetsoese ve 6

Dae heCsaWcnwebeSe ceed vedere 22

airs S acae e's deeb tbc eV eee oe 6

Amend. XIV

hates de Cised ive bot ieee passim

Pie Ae 6 ee ob.0 6s Me wb: 17

tid huwetadve ned eee bebe we 17

EE ik atts dk a en's dtc « passim

Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27 ........ 9

Religious Freedom Restoration Act, 42 U.S.C.

Re 2

EE Sha ci ee ie hdc e¥s és hs 3

I a C's biG en obs eb 8 ode 6% Oe 3

I A CO Riws o'sé 6 bela bbbe bite es 28

MISCELLANEOUS:

1 The Debates and Proceedings in the Congress of the United

States (Gales & Seaton, 1834):

I SCP eee eis bcwtedesdeceseeews 25

hy Te WG Sard b 0 ded eee eet eet carved 26

Cong. Globe, 39th Cong., Ist Sess. (1866):

SF EPP Pee rr. OL Pe CEPT 6,27

Dy EES oe ee Hee eV Oeste stisdevedet 6

SS Se Peer Te Pe re re ye 6

2 rT PrrIeerrererrrrrries Ss 7

Eh sab vob e we be evouces ede 7,26,27

DEEN oveccescecovaveccisvduvetwes 7

DE ws bce cesedeweeeebaoesneceees 6

Beer rrerrerrreerrrrrr ss 7,8

RT eae soede be cde aceeue ewes 8,20

Db Wee cet ceeds dseaveneeken 26

SOCEM os Cec cecdusetdevecedeteces 9

Dt Chdedeveseveseeeseeneevares 9

ON ee ee ee 17

Se eh bevcccuweeveseessahesds 9,16

DIRE a ota ese ted sbteaee ce eeu 16,18

Cong. Globe, 42d Cong., Ist Sess. (1871)

PH ee 6 Cee SCS Wed eeeedeencceces 27

DE dé evecewcdeeccoseeb enue 10

ee ds OW awe Ceewoe wees Nee sicke 12

MO ¢ Hedevivesdeevedecees« 5,12

DR EEe Pesce ccbesvesvévoccedent 13

DE eee 65 0 0k CW eee viclee ees bubs 16

Me dew cevecetaeebedveeea 11,12

DE caVedevervaceseseweandes 16

RSE covicver ede seCdeoret ese 12

PEE Svcdccwcdbcteeedavoteeee 27

EE a 6 06006 bh eee whee wawek en 13

i I ws oS eee aks Cebiee 12

ON See, CK Nee eee Te eccccscee 13

Cong. Rec. 43d Cong., ist Sess. app. 244 (1874) .... 16

H.R. Rep. No. 88, 103d Cong., Ist Sess.(1993) ...... 2

S. Rep. No. 11, 103d Cong., Ist Sess. (1993) ....... 2

Remarks on Signing the Religious Freedom Restoration

Act of 1993, 29 Weekly Comp. Pres. Doc. 2377

e DS ea eae see ee 3

Akhil Reed Amar, The Bill of Rights as a Constitution,

ee Se Eas DURE <n hc eke nec sdeee wes 25

Alfred Avins, The Ku Klux Klan Act of 1871: Some

Reflected Light on State Action and the Fourteenth

Amendment, 11 St. Louis U.L.J. 331 (1967) ....... 19

Alexander M. Bickel, The Voting Rights Cases, 1966

Ss Tied Ss Fe wah Vb oes Hole @s ones 0c 19

Alexander M. Bickel, The Original Understanding and

the Segregation Decision, 69 Harv.L. Rev. 1 (1955). . 19

Jay S. Bybee, Taking Liberties With the First Amendment:

Congress, Section 5, and the Religious Freedom

Restoration Act, 48 Vand. L. Rev. 1539 (1995) .... 3,22

Daniel O. Conkle, The Religious Freedom Restoration Act:

The Constitutional Significance of an Unconstitutional

Statute, 56 Mont. L. Rev. 39 (1995) ............. 3

Mark P. Denbeaux, The First Word of the First Amendment,

SO Nw. U.L. Rev. 1156 (1906)... cc cc eee 26

Department of Justice, Office of Legal Policy, Report to

the Attorney General: Religious Liberty under the Free

PG ee Pee eee 26

John Hart Ely, Democracy and Distrust (1980) ...... 25

Charles Fairman, Does the Fourteenth Amendment

Incorporate the Bill of Rights?, 2 Stan.L. Rev. 5 (1949) 4

Felix Frankfurter, Memorandum on “Incorporation” of the

Bill of Rights into the Due Process Clause of the Fourteenth

Amendment, 78 Harv. L. Rev. 746 (1965) ........ 23

-vi-

Horace Flack, The Adoption of the Fourteenth Amendment

GOED cccccvdccvoerverevdeced Saeeeteines 5

John Harrison, Reconstructing the Privileges or Immunities

Clause, 101 Yale L.J. 1385 (1992) ..........4..-. 10

Mark DeWolfe Howe, The Garden and the Wilderness

CSG icc c o Fee ee PUR ts HER Fi 26

Joseph B. James, The Framing of the Fourteenth

Aaa CGS) cc ccccccscceesceddeseces 5

Leonard W. Levy, Freedom of the Press from Zenger to

FRIAR GED oc cccccccvccssevvvcvvvetes 26

Leonard W. Levy, The Legacy Reexamined, 37 Stan. L.

Rev. TET GED) oc ccccctdivetiveudevcdece 26

Leonard W. Levy, On the Origins of the Press Clause,

32 U.C.L.A. L. Rov. 877 GEOR cic cteveccsectes 26

Earl M. Maltz, Civil Rights, The Constitution, and Congress,

i i PPE PTETELILUPEE LE 19

Alexander Meiklejohn, What Does the First Amendment

Mean?, 20 U. Chi. L. Rev. 461 (1953) .......... 26

William E. Nelson, The Fourteenth Amendment: From

Political Principle to Judicial Doctrine (1988) ..... . 10

Leo Pfeffer, Church, State & Freedom (1953)....... 26

William Van Alstyne, An Essay on the Failure of the

Religious Freedom Restoration Act Under Section 5 of the

Fourteenth Amendment, 46 Duke L.J. __ (forthcoming

ey eae ee Wis 20

On Writ of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

BRIEF OF CLARENDON FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

Pursuant to Rule 37.3 of this Court, Clarendon Foundation

respectfully submits this brief amicus caries in support of

Petitioner.' Clarendon Foundation is a nonprofit, nonpartisan

legal foundation concerned with significant issues related to the

' Consent to the filing of this brief has been granted by counsel for all

parties via a stipulation previously lodged with the Clerk and a letter of consent

from the United States filed sumultaneously herewith.

——————

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Constitution and democratic government, particularly in the areas

of federalism and states’ rights. Because this case raises questions

relating to the proper bounds of federal power, we believe our

perspective will complement the briefs of the parties and assist the

Court in the resolution of the issues at hand.

SUMMARY OF ARGUMENT

In enacting the Religious Freedom Restoration Act

(RFRA), 42 U.S.C. § 2000bb, Congress stated expressly that

Section 5 of the Fourteenth Amendment supplied its authority.

S. Rep. No. 11, 103d Cong, Ist Sess. 13-14 (1993); H.R. Rep.

No. 88, 103d Cong., Ist Sess. 9 (1993). It is not remarkable that

Congress would rely on Section 5. Congress has enacted

numerous laws under this authority, most of which have been

upheld by this Court. E.g., City of Rome v. United States, 446

U.S. 156 (1980); Fullilove v. Klutznick, 448 U.S. 448 (1980);

Oregon v. Mitchell, 400 U.S. 112 (1970); Katzenbach v. Morgan,

384 U.S. 641 (1966); The Civil Rights Cases, 109 U.S. 3 (1883).

What is remarkable about Congress's action is that Section 5

grants Congress the "power to enforce, by appropriate legislation,

the provisions of [the Fourteenth Amendment]," and RFRA

imposes on the states extra-constitutional burdens that this Court

has held are not required by the Fourteenth Amendment itself.

Employment Division v. Smith, 494 U.S. 872 (1990).

RFRA is a fulfillment of the Court's holding in

Katzenbach v. Morgan, 384 U.S. 641 (1966), that Congress could

"prohibit the enforcement of . . . state law" under Section 5

"[w]ithout regard to whether the judiciary would find [that Section

1 of the Fourteenth Amendment so required]." Jd. at 649.

Morgan has been read as approving Section 5 both as remedial

authority to “eliminate the case-by-case process of adjudicating

eT ere a

<x

constitutional violations" (see id. at 652-53) and as a substantive

power by which Congress may determine for itself the meaning of

the Fourteenth Amendment (id. at 653-56).’ In Morgan, this

Court upheld a provision of the Voting Rights Act of 1965, 42

U.S.C. § 1973b(e), that forbid English literacy requirements as a

qualification to vote even though this Court had previously

upheld the constitutionality of such requirements. Lassiter v.

Northampton Election Board, 360 U.S. 45 (1959). Stating that

the “language [and] history" (Morgan, 384 U.S. at 648) of the

Fourteenth Amendment supported its view, the Court held that

Congress could compel or forbid state practices even where this

Court had held that the practice did not violate the Fourteenth

Amendment. So long as Congress does not "restrict, abrogate, or

dilute [the Fourteenth Amendment's] guarantees" (id. at 651 n.10),

there are no apparent restrictions on what Congress can enact in

the name of due process and equal protection.‘

* Daniel O. Conkle, The Religious Freedom Restoration Act: The

Constitutional Significance of an Unconstitutional Statute, 56 Mont. L. Rev.

39, 42 (1995).

> Id. at 46-53; Jay S. Bybee, Taking Liberties With the First

Amendment: Congress, Section 5, and the Religious Freedom Restoration Act,

48 Vand. L. Rev. 1539, 1616-24 (1995).

* While some members of the Court have described Morgan as

resting on deference to congressional fact finding, ¢.g., Richmond v. J.A.

Croson Co., 488 U.S. 469, 490 (1989) (O'Connor, J.; plurality opinion);

Oregon v. Mitchell, 400 U.S. 112, 248-49 (1970) (Brennan, J., concurring and

dissenting), no such deference can be given to Congress in RFRA. Congress

has stated as plainly as it can that it disagrees with the Court on the meaning

of the First Amendment. 42 U.S.C. § 2000bb(a), (6) (RFRA “restores” the

compelling interest test “virtually eliminated" in Employment Division). See

also Remarks on Signing the Religious Freedom Restoration Act of 1993, 29

Weekly Comp. Pres. Doc. 2377 (Nov. 16, 1993) (RFRA “reverses” the

Court's decision in Employment Division). Whatever construction of Morgan

might be had in other circumstances, in RFRA Congress took from Morgan

the most aggressive approval of its powers.

i,

Justice Harlan, joined by Justice Stewart, dissented in

Morgan. He would have held that Section 5 gave Congress power

"to take appropriate remedial measures to redress and prevent. . .

wrongs,” but that its remedial authority depended on “recognized

state violations of federal constitutional standards hav[ing]

occurred." 384 U.S. at 666 (Harlan, J., dissenting). Otherwise, he

reasoned, if Section 5 were a substantive power, "Congress would

be able to qualify this Court's constitutional decisions under the

Fourteenth and Fifteenth Amendments, let alone those under

other provisions of the Constitution." Jd. at 667-68. Justice

Harlan's warning has been borne out in RFRA.

Justice Brennan's majority opinion and Justice Harlan's

dissenting opinion mirror precisely the debates of an earlier

generation over the scope of Congress's power under the

Fourteenth Amendment. Those debates tell a tale of two

provisions: The first was Representative John Bingham's original

proposed amendment, which would have given Congress plenary

authority to revise the laws of the states to secure equal protection

of life, liberty and property. As discussed in greater detail herein,

Bingham's proposal was widely understood as substantive

authority, conferring upon Congress the original power to enact

uniform laws, to secure equal protection by providing the same

protection nationwide. The second provision, a proposal that

became our Fourteenth Amendment, enjoined the states from

denying equal protection and due process of law and gave

Congress the power to “enforce, by legislation, [those]

provisions.” U.S. Const. Amend. XIV, § 5. The amendment was

contemporaneously understood to require equality within each

state's laws and to empower Congress with remedial authority, the

authority to enforce the provision when a state failed to observe

it.

As we show in Part |, this Court in Morgan effectively

resurrected John Bingham's original proposal — which had been,

-5-

as one Representative put it, "given its quietus . . . where it slept

the sleep that knows no waking” (Cong. Globe, 42d Cong, Ist

Sess. app. 115 (1871) (statement of Rep. Farnsworth)) — and

rejected the more modest enforcement power actually granted

Congress in Section 5. See 384 U.S. at 650 & n.9. This reading

is completely inconsistent with the “text [and] history” Morgan

purported to rely on. To the extent Katzenbach v. Morgan stands

for such a proposition, it should be overruled. In Part IL, we

demonstrate that, even if the Morgan power is a reasoned

interpretation of Section 5 it should be extended to incorporated

rights and, in particular, the First Amendment.

ARGUMENT

L SECTION 5 DOES NOT GRANT CONGRESS THE

POWER TO ENFORCE EXTRA-CONSTITUTIONAL

RIGHTS; KATZENBACH v. MORGAN IS INCONSISTENT

WITH THE TEXT AND HISTORY OF THE FOURTEENTH

AMENDMENT AND SHOULD BE OVERRULED.

A. Bingham's Proposed Amendment And Congress's

Power to Make Uniform National Laws

When the Thirty-Ninth Congress assembled in December

of 1865, it formed a 15 member bi-partisan Joint Committee on

Reconstruction to draft various pieces of legislation, including a

new amendment to the Constitution.’ In February 1866, a mem-

. vee Oregon v. Mitchell, 400 U.S. at 155-67 (Harlan, J., concurring

and dissenting) (recounting history of Fourteenth Amendment). Other useful

chronologies of these events are found in Horace Flack, The Adoption of the

Fourteenth Amendment (1908); Joseph B. James, The Framing of the

Fourteenth Amendment (1956); Charles Fairman, Does the Fourteenth

Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949).

of

ber of the Joint Committee, Ohio Republican John Bingham,

proposed an amendment. It read in its entirety:

ARTICLE _. The Congress shall have power to

make all laws which shall be necessary and proper

to secure to the citizens of each State all privileges

and immunities of citizens in the several States,

and to all persons in the several States equal

protection in the rights of life, liberty, and

property.

Cong. Globe, 39th Cong., Ist Sess. 1034 (1866). Bingham

explained that his proposal constituted "an express grant of power

upon the Congress" and followed language from the Comity

Clause (Art. IV, § 2) and the Due Process Clause (Amend. V). Jd.

Three days of intense debate followed in the House.

Immediately following Bingham's introduction of the

proposed amendment, Representative A.J. Rogers, a New Jersey

Democrat and member of the Joint Committee, rose to speak.

Rogers argued that the proposal was "the embodiment of

centralization and the disfranchisement of the States,” and its

effect was to "take away the power of the States; and to interfere

with the internal police and regulation of the States." Cong.

Globe, 39th Cong., Ist Sess. app. 133, 134 (1866). Rogers was

not alone, and his concerns held sway on both sides of the aisle.

See Oregon v. Mitchell, 400 U.S. at 260 (Brennan, J., concurring

and dissenting). Democrat Garrett Davis criticized the Bingham

proposal as a "grant for original legislation by Congress. . . .

[Congress] . . . is itself the judge of the measure of [equal]

protection. Its legislation may be universal. It may enlarge

protection, it may circumscribe it and limit it, if only it make it

equal." Cong. Globe, 39th Cong, Ist Sess. 1087 (1866).

Republican Robert Hale of New York thought it would be easy

enough to show that “every State in this Union fails to give equal

“Te

protection to all persons within its borders in the rights of life,

liberty, and property." Jd. at 1064. Hale assailed Bingham's

proposal as "a provision under which all State legislation, in its

codes of civil and criminal jurisprudence and procedure, . . . may

be overridden, may be repealed or abolished, and the law of

Congress established instead.” Jd. at 1063. -

On the Senate side, Republican Senator William Stewart,

a supporter of the legislation, understood Bingham's proposal in

much the same way, as a power to make the laws in the states not

only equal, but the same. Quoting Bingham's proposal, Stewart

observed:

Congress shall have power by law to make all the

laws in all the States affecting the protection of

either life, liberty, or property, precisely similar; .

... Congress must examine and modify all these

laws, so that they shall afford the same protection

in all the States that they do in any. The only way

this could be accomplished, would be for

Congress to legislate fully upon all subjects

affecting life, liberty, and property, and in this way

secure uniformity and equal protection to all

persons in the several States. When this was

done, there would not be much left for the State

Cong. Globe, 39th Cong., Ist Sess. 1082 (1866).

Representative Bingham himself had the opportunity to

deny that this was both the intent and the effect of his proposal.

Late in the House debates, Hale asked Bingham directly "whether

this provision, if adopted, confers upon Congress general powers

of legislation in regard to the protection of life, liberty, and

personal property." Cong. Globe, 39th Cong., Ist Sess. 1094

-8-

(1866). Bingham obfuscated: "It certainly does this: it confers

upon Congress power to see to it that the protection given by the

laws of the States shall be equal in respect to life and liberty and

property to all persons." Jd. The last Representative to speak was

New York's Giles Hotchkiss, who began with the observation that

"Constitutions . . . should be so plain that the common mind can

understand them." Jd. at 1095. He too objected that while the

“object in . . . proposing this amendment is to provide that no

State shall discriminate between its citizens," the Bingham

proposal “by its terms... authorize[s] Congress to establish

uniform laws throughout the United States upon . . . the protection

of life, liberty, and property." Jd. He questioned whether the

Bingham proposal would actually result in the equality Bingham

advocated, since subsequent Congresses could revise the laws at

will. Instead, Hotchkiss proposed, "[w]hy not provide by an

amendment to the Constitution that no State shall discriminate

against any class of its citizens." Jd. The House then voted 110

to 37 to table Bingham's proposal, with Representative Bingham

himself voting to postpone. Jd. It was never reconsidered.

B. The Fourteenth Amendment And Congress's Power to

Enforce Equal Protection of State Laws

In May 1866, Republican Representative Thaddeus

Stevens, a member of the Joint Committee, introduced a redrafted

proposed amendment. The new proposal was substantially the

same as our Fourteenth Amendment.® In contrast to Bingham's

proposal, which authorized Congress to define equal protection,

Section 1 of the proposed amendment directly prohibited the

states from denying equal protection and due process of law.

According to Stevens, it would allow Congress "to correct the

unjust legislation of the States, so far that the law which operates

* The only significant change in Section 1 was the addition of the

Citizenship Clause.

-9.

upon one man shall operate equally upon all. Whatever law

punishes a white man for a crime shall punish the black man

precisely in the same way and to the same extent." Cong. Globe,

39th Cong., Ist Sess. 2459 (1866) (emphasis in original). When

Senator Jacob Howard introduced the proposed amendment in the

Senate, he similarly emphasized that Section 1 was a direct

prohibition on the states, an equality provision, that forbade "the

hanging of a black man for a crime for which the white man is not

to be hanged." Jd. at 2766. According to Howard, Section 5 was

a “delegation of power to Congress to carry out all the principles

of all these guarantees." Jd. Section 1 of the proposed

amendment occasioned surprisingly little debate. The proposed

amendment was adopted in June 1866 and ratified by the states in

1868.

The contrast between Bingham's proposal and the

Fourteenth Amendment is stark. Both had as their objective the

securing of equal protection, but they suggested radically different

means of achieving that end. In the views of members of

Congress, Bingham's proposal would have ensured equal laws by

making them the same; it would have given Congress authority to

enact uniform laws. Since Congress would have plenary authority

to enact laws to secure all priv leges and immunities and equal

protection, Congress would have simply displaced state laws with

federal law, thereby guaranteeing not just equal laws but the same

laws. On the other hand, Section 1 of the Fourteenth Amendment

guarantees equality under the law, but does not demand uniform

laws. This is consistent with the admitted purposes of the

Fourteenth Amendment, one of which was to constitutionalize the

Civil Rights Act of 1866. See Cong. Globe, 39th Cong., Ist Sess.

1292-93 (1866) (statement of Rep. Bingham). That Act provided

that all persons should enjoy "the same [civil] right[s] in every

State... as [are] enjoyed by white citizens, and shall be subject

to like punishment." Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27.

The Civil Rights Act promised that whatever substantive laws a

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state adopted protected equally white and black citizens.’ The

Fourteenth Amendment does not require national uniformity in

order to guarantee equality, it recognizes the continued vitality of

the states, but imposes a duty on them to provide equal protection

to all of their citizens and gives Congress the power to enforce

that duty.

This understanding of the substantial differences between

the two provisions was confirmed in the civil rights enforcement

debates in 1871. In those debates, which were far more detailed

than the debates of 1866, members of Congress argued over the

scope of the Fourteenth Amendment and, in particular, the

relationship between Sections 1 and 5. John Bingham argued that

the Fourteenth Amendment and his earlier, failed proposal were

not only substantially the same, but that Congress actually had

acquired greater power under the Fourteenth Amendment. After

claiming authorship of the Fourteenth Amendment and quoting

Sections 1 and 5, Bingham stated:

The gentleman says that amendment differs from

the amendment reported by me in February;

differs from the provision introduced and written

by me, now in the fourteenth article of

amendments. It differs in this: that it is, as it now

stands in the Constitution, more comprehensive

than as it was first proposed and reported in

February, 1866. It embraces all and more than did

the February proposition.

Cong. Globe, 42d Cong., Ist Sess. app. 83 (1871).

” See William E. Nelson, The Fourteenth Amendment: From Political

Principle to Judicial Doctrine 118 (1988); John Harrison, Reconstructing the

Privileges or Immunities Clause, 101 Yale L.J. 1385, 1410-13 (1992).

-]l-

Bingham's contention was carefully answered by fellow

Ohio Republican James Garfield, who disagreed with Bingham's

characterization and explained the difference:

The [Fourteenth Amendment] exerts its force

directly upon the States, laying restrictions and

limitations upon their power and enabling

Congress to enforce these limitations. The other,

the rejected proposition, would have brought the

power of Congress to bear directly upon the

citizens, and contained a clear grant of power to

Congress to legislate directly for the protection of

life, liberty, and property within the States. The

[Fourteenth Amendment] limited but did not oust

the jurisdiction of the State over these subjects.

The [Bingham proposal] gave Congress plenary

power to cover the whole subject with its

jurisdiction . . . to the exclusion of the State

authorities.

Cong. Globe, 42d Cong, Ist Sess. app. 151 (1871). Then

Garfield related that

it became evident that many leading Republicans

of this House would not consent to so radical a

change in the Constitution . . . it became perfectly

evident, both to the members of the Senate and of

the House, . . . that the measure could not

command a two-thirds vote of Congress, and for

that reason the proposition was virtually

withdrawn.

Id. Garfield concluded, "unless we ignore both the history and the

language of these clauses we cannot, by any reasonable

interpre tion, give to [Section 5] . . . the force and effect of the

-12-

rejected clause." Jd. In like fashion, John Farnsworth of Illinois

confronted Bingham, quoted extensively from the 1866 debates,

and then cited lengthy passages from Thaddeus Stevens’ speeches

to show that the Bingham proposal "was abandoned and a

different amendment substituted, different in form and substance,

and so understood by Congress." Jd. at app. 115.

Cc. The Consequences of the Framers’ Choice of the

Fourteenth Amendment Over Bingham's Proposal

As members of Congress made clear in the debates of

1866 and 1871, the Bingham proposal was a pure grant of power

to Congress. The proposal had no self-enforcing provision, no

provision that was judicially enforceable. Under the Bingham

proposal, Congress would have been the sole judge of what

privileges and immunities and protection of life, liberty and

property citizens should possess. Section | of the Fourteenth

Amendment, by contrast, was judicially enforceable in the same

way as the state disabilities in Article , Section 10, after which it

was patterned. See Cong. Globe, 42d Cong., lst Sess. app. 84

(1871) (statement of Rep. Bingham) (describing that he had

imitated Article L Section 10 with the phrase "No State shall").

See also id. at app. 260 (statement of Rep. Holman); id. at app.

221 (statement of Sen. Thurman).

There are two consequences of the framers’ choice

between the Bingham proposal and our present Fourteenth

Amendment: first, enforcement of Section 1 lies primarily,

although not exclusively, with the judiciary, second, a prerequisite

to congressional enforcement of Section 1 is a finding that the

13.

1, Judicial interpretation and Enforcement

of Section 1

The framers of the Fourteenth Amendment understood

that Section 1, like the other provisions of the Constitution that

begin with the words "No State shall” (Art. I, § 10, cls. 1-3) would

be enforced principally by the courts.

The first Section of the amendment requires no

legislation; “it is a law unto itself.” and the courts

can execute it. [If it requires “enforcing”

legislation, what kind does it require? Certainly

not a law which goes a long way beyond the scope

of the provision. . . . [T]he only "legislation" we

can do is to “enforce” the provisions of the

Constitution upon the laws of the State.

Cong. Globe, 42d Cong., 1st Sess. app. 117 (1871) (statement of

Rep. Farnsworth). Representative Holman argued that Section 1

was 2 "positive limitation and nothing more," and that when states

violated Section 1, no one should “doubt the completeness of the

remedy .. . . The Supreme Court will declare the law void." Jd.

at app. 259. Accord id. at app. 315 (statement of Rep. Burchard).

The Court confirmed this understanding in United States

v. Harris, 106 U.S. 629 (1882). In that case the Court struck

down a section of the Civil Rights Act of 1871 making it criminal

for private persons to interfere with the “equal privileges and

immunities under the laws." The Court denied that Section 5

could sustain the act because the Fourteenth Amendment referred

to state action exclusively. In the process the Court suggested the

remedial limits of the Amendment:

The language of the Amendment does not

leave this subject in doubt. When the State has

-14-

been guilty of no violation of its provisions; when

it has not made or enforced any law abridging the

privileges or immunities of citizens of the United

States; when no one of its departments has

deprived any person of life, liberty, or property

without due process of law, or denied to any

person within its jurisdiction the equal protection

of the laws; when, on the contrary, the laws of the

State, as enacted by its legislative and construed

by its judicial and administered by its executive

departments, recognize and protect the rights of

all persons, the Amendment imposes no duty and

confers no power upon Congress.

Id. at 639 (emphasis added).

2. Congressional Enforcement of Violations

of Section 1

The second implication of the framers’ choice between the

Bingham proposal and our Fourteenth Amendment is precisely

what Section 5 says: Congress has power to enforce the

Amendment. When Section 5 is read side by side with Bingham's

proposal, it becomes evident that the term “enforce” is a term of

limitation on what could have been a much broader grant of

power to Congress. Congress, of course, was not deprived of any

power at all in the Fourteenth Amendment. Section 5 is plainly

a grant of authority, but it is not the unbounded grant that was the

original Bingham proposal. Nor is it merely a Necessary and

Proper Clause (Art. I, § 8, cl. 18). There are two significant

differences. The Necessary and Proper Clause authorizes

Congress to pass laws to “execute” the "powers" of the federal

government. Section 5 grants Congress the power to "enforce"

the "provisions" of the Amendment. "Execute" is a broader term

than "enforce." The President's power to “take Care that the Laws

Ee ee ee

-15-

be faithfully executed” (Art. II, § 3) encompasses not only the

power to charge past violations of the law, but the power to

administer, to regulate, and to promulgate standards for future

application. Section 5 grants Congress the power to “enforce”: it

is the power to see that laws are observed.

a

On the other hand, the Necessary and Proper Clause

applies to the "powers" of the government, while Section 5

applies to “provisions.” Powers are those things the federal

government is affirmatively authorized to do, in contrast to

disabilities, prohibitions, or restrictions on federal power. Thus,

despite the broad scope of the Necessary and Proper Clause, the

Court has held that Congress has no power to execute certain

clauses in the Constitution, such as the Comity Clause which, as

a restriction on the states, is self-enforcing. United States v.

Wheeler, 254 U.S. 281, 293-94 (1920); United States v. Harris,

106 U.S. 629, 643-44 (1882). Section 5, by contrast, applies to

the "provisions" of the Fourteenth Amendment. As the first

Justice Harlan observed in The Civil Rights Cases, the purpose of

Section 5 is “to enforce ‘the provisions of this article’ of

Amendment, not simply those of a prohibitive character, but the

provisions — all of the provisions — affirmative and prohibitive,

of the Amendment." 109 U.S. at 46 (Harlan, J., dissenting)

(emphasis in original). In this respect Section 5 is broader than

the Necessary and Proper Clause. Congress may enforce all of the

provisions of the Fourteenth Amendment, but it is limited to just

that — "enforcement." See The Civil Rights Cases, 109 U.S. at

11; Ex Parte Virginia, 100 U.S. 339, 345-46 (1879).

The term "enforce," when read together with Section 1,

means that Congress may enact "appropriate legislation" when the

states have violated Section 1. Senator Howard, as he introduced

the redrafted proposed amendment in the Senate, explained that

Section 1 was a “restrain[t] [on] the power of the States .. . [and]

not powers granted to Congress." Cong. Globe, 39th Cong,, Ist

-16-

Sess. 2766 (1866). When he read Section 5 together with Section

1, he said it “cast[] upon Congress the responsibility of seeing

... that all the sections of the amendment are carried out. . . . It

enables Congress, in case the States shall enact laws in conflict

with the principles of the amendment, to correct that legislation

by a formal congressional enactment.” Jd. at 2768. See Cong.

Globe, 42d Cong., Ist Sess. app. 160 (1871) (statement of Rep.

Golladay). James Garfield agreed that "[w]Jhenever such a state of

facts is clearly made out, . . . the last clause of the first section

empowers Congress to step in and provide for doing justice to

those persons who are thus denied equal protection.” Cong.

Globe, 42d Cong., Ist Sess. app. 153 (1871). And as Senator

Norwood said, “until a State shall attempt to abridge [a citizen's]

rights, Congress has no power to act." Cong. Rec., 43d Cong., Ist

Sess. app. 244 (1874).

The Court confirmed this understanding in The Civil

Rights Cases, 109 U.S. 3 (1886). Section 5 did “not authorize

Congress to create a code of municipal laws for the regulation of

private rights.” Jd. at 11. Rather, Congress's authority was

remedial in nature, “provid[ing] modes of redress against the

operation of state laws, and the action of state officers executive

or judicial, when these are subversive of the fundamental rights

specified in the Amendment." Jd.

D. Morgan's Reliance on the "Language [and] History"

of the Fourteenth Amendment Is Flawed

This history points inexorably to the conclusion that this

Court's holding in Morgan went too far. The Court purported to

have relied on the "language [and] history” of Section 5 (384 U.S.

at 648), yet the Court only cited secondary sources and a single

statement by Senator Jacob Howard. This is a thin reed on which

to have based so important a proposition. Moreover, the Court

cited the secondary sources for the unremarkable observation that

| tana

-17-

"the sponsors and supporters of the Amendment were primarily

interested in augmenting the power of Congress, rather than the

judiciary.” 384 U.S. at 648 n.7. That statement is true, but

irrelevant. Bingham was “interested” in augmenting Congress's

power, but, as we have seen, he was not entirely successful in his

efforts. For the framers, the most controversial provisions within

the Fourteenth Amendment were Sections 2 (representation in

Congress) and 3 (disability from holding public office for those

engaging in rebellion). See, e.g., Cong. Globe, 39th Cong., Ist

Sess. 2459-60 (1866) (statement of Rep. Stevens) (Section 2 was

"the most important in the article"; Section 3 "may encounter

more difference of opinion here"). Both of these sections required

congressional action and enforcement. On the basis of Sections

2 and 3 alone, it could be said that Congress was primarily

interested in augmenting its own power.

More significantly, the Court cited only a single statement

of Senator Howard for the expansive proposition that "[a]

construction of § 5 that would require a judicial determination

that the enforcement of the state law precluded by Congress

violated the Amendment, as a condition of sustaining the

congressional enactment, would depreciate both congressional

resourcefulness and congressional responsibility for implementing

the Amendment." 384 U.S. at 648. The Court quoted Howard:

[Section 5] casts upon Congress the responsibility

of seeing to it, for the future that all the sections of

the amendment are carried out in good faith, and

that no State infringes the rights of persons or

property. I look upon this clause as indispensable

for the reason that it thus imposes upon Congress

this power and this duty. It enables Congress, in

case the States shall enact laws in conflict with the

principles of the amendment, to correct that

legislation by a formal congressional enactment.

-18-

384 US. at 648-49 n.8 (quoting Cong. Globe, 39th Cong., Ist

Sess. 2768 (1866)). The Court then commented that Howard's

statement was “not questioned by anyone in the course of the

debate." Jd.

Senator Howard's imprecise statement does not support

the Court's conclusion. First, as Howard made clear, the power of

Congress is the power to "correct" state laws in "conflict" with the

Fourteenth Amendment. It is not, as the Court held in Morgan,

the power to prescribe law in opposition to the Court's express

finding that no violation of the Fourteenth Amendment has

occurred. Second, even if Howard's statement could be said to

support the Court's holding, the Court cited only Howard,

ignoring the larger context for the adoption of the revised

amendment. It was passed against the background of a far more

aggressive proposal, one that would have given Congress far

greater discretion — one that Congress had concluded it could not

submit to the states for ratification.

Finally, despite the obvious differences between the

Bingham proposal and the Fourteenth Amendment, this Court in

Morgan simply conflated the two. The Court declared that

Section 5 "grant[ed] to Congress . . . the same broad powers

expressed in the Necessary and Proper Clause." 384 U.S. at 650.

See also United States v. Guest, 383 U.S. 745, 782-83 (1966)

(Brennan, J., concurring and dissenting in part). The Court

justified this because John Bingham considered his proposal and

the Fourteenth Amendment coextensive and, as the Court noted,

“earlier drafts of the proposed Amendment employed the

‘necessary and proper’ terminology to describe the scope of

congressional power under the Amendment." 384 U.S. at 650 n.9.

Looking to language that drafters rejected may be an interpretive

guide to the language actually adopted, but the inference the

Court draws is exactly the wrong one. If any inference at all is to

be taken from language considered and rejected, it is that the

han AB Reise

sinietiaicammtiitaa iliac

-19-

rejected language was not intended. See Norwegian Nitrogen

Products Co. v. United States, 288 U.S. 294, 306 (1933); United

States v. Great Northern Ry., 287 U.S. 144, 155 (1932); United

States v. Pfitsch, 256 U.S. 547, 550-52 (1921). See also Ex Parte

Oppenstein, 233 S.W. 440, 444 (Mo. 1921). It is ironic that the

Court read Bingham's proposal into Section 5 nunc pro tunc. The

framers of the Fourteenth Amendment knew how to say

“necessary and proper," and they considered and rejected that

formulation.’

E, Morgan Grants Even Greater Powers to the

United States Than Would Have Been

Conferred Under Bingham's Rejected Proposal

The Court's holding in Morgan not only embraces the

powers Congress would have acquired in the Bingham proposal,

it goes much further. Under the Bingham proposal, Congress

would have been the exclusive judge of what privileges and

* See Alexander M. Bickel, The Voting Rights Cases, 1966 Sup. Ct.

Rev. 79, 97 ("Nothing is clearer about the history of the Fourteenth

Amendment than that its framers rejected the option of an open-ended grant of

power to Congress to meddle with conditions within the states so as to render

them equal in accordance with its own notions. . . . [T]he power of Congress

comes into play only when the precondition of a denial of equal protection of

the laws by a state has been met."); Alexander M. Bickel, The Original

Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 60 (1955)

(“Presumably the lesson taught by the defeat of the Bingham amendment had

been learned. Congress was not to have unlimited discretion, and it was not

to have the leeway represented by ‘necessary and proper’ power."). See also

Earl M. Maltz, Civil Rights, The Constitution, and Congress, 1863-1869, at

92 (1990) (arguing that any construction of Section 1 must not be "subject to

the objections that caused the rejection of Bingham's original amendment");

Alfred Avins, The Ku Klux Klan Act of 1871: Some Reflected Light on State

Action and the Fourteenth Amendment, 11 St. Louis U.L.J. 331, 381 (1967)

("The result of [United States v. Guest, 383 U.S. 745 (1966)] is to resurrect

the rejected first draft of the Bingham amendment . . . and enshrine it in all of

its glory into the fourteenth amendment.").

-20-

immunities were required, and what constituted equal protection

of life, liberty and property. That meant that under the Bingham

proposal, Congress could have expanded or contracted rights, and

the Court would have been powerless t. correct it because there

would have been no standards in the amendment for judging

Congress. This was one of the main criticisms of the Bingham

proposal, that the entire matter was left to the "caprice" of

Congress. Ceng. Globe, 39th Cong., Ist Sess. 1095 (1866)

(statement of Rep. Hotchkiss). Yet, after Morgan, the Court sets

the baseline and Congress may improve upon, but not take away

from, that baseline. The so-called Morgan "ratchet" is thus far

more state-restrictive than the Bingham proposal because it allows

change in one direction only. It engages both the Court and the

Congress independently in the process of declaring and then

enforcing broad concepts of equal protection and due process.

If the Court is to be taken at its word in Morgan, there are

no apparent limits to what extra-constitutional standards Congress

may impose on the states (so long as it does not cross the Court's

baseline). For example, Congress might prescribe the substantive

grounds upon which search and seizures may be conducted,

restricting the states even more than required by the Fourth

Amendment. It could prescribe the number of jurors required in

criminal cases, or the qualifications for counsel assisting the

accused. Indeed, Congress could enact laws nullifying otherwise

constitutional municipal anti-obscenity ordinances. That

Congress has not done so or, in the judgment of some, would not

do so is quite irrelevant. The question is one of authority, not

will. Morgan certainly indicates that Congress possesses the

authority to do all these things.°

*These examples are taken from William Van Alstyne, An Essay On

the Failure of the Religious Freedom Restoration Act Under Section 5 of the

Fourteenth Amendment, 46 Duke L.J.___ (forthcoming November 1996).

CARO tile Dierdl ons BIH S

-21-

In sum, Morgan rests on a seriously flawed reading of the

Fourteenth Amendment, one that is inconsistent with its text and

history. A careful reading of Sections 1 and 5 gives Congress the

authority to enact corrective ‘egislation when the courts have held

— or would hold — that laws or practices violate the commands

of Section 1. It does no violence to the Fovtteenth Amendment

to conclude that Congress may anticipate, in good faith, that

certain state laws and practices, if challenged in court, would

violate Section 1. And Congress may engage in its own factual

inquiry into such laws and practices and bring its own insights

and findings to a conclusion that state laws and practices violate

the terms of the Fourteenth Amendment. But it surely does great

violence to the Fourteenth Amendment to say that Congress has

"enforce[d] [the Fourteenth Amendment] through appropriate

legislation" when it proscribes, penalizes, or otherwise corrects

state actions that the federal judiciary has declared are fully

consistent with the provisions of the Constitution.

IL. EVEN ASSUMING THAT THE MORGAN POWER

MAY BE LEGITIMATELY EXERCISED IN SOME CASES,

If SHOULD NOT BE INVOKED TO REVISE THIS

COURT'S PRONOUNCEMENTS ON INCORPORATED

RIGHTS GENERALLY, OR THE FIRST AMENDMENT

SPECIFICALLY.

Even if Morgan represented a considered and principled

view of Congress's power to secure the broad contours of equal

protection and due process, it should not extend to the specific

rights incorporated through the Due Process Clause. It is

particularly inappropriate that Congress enforce against the states

eT

-22-

a provision that begins "Congress shall make no law . . . ." Amend.

L"°

In Morgan this Court refused to "confine the legislative

power" to the task of “particularizing the 'majestic generalities’ of

§ 1." 384 U.S. at 648-49 (quoting Fay v. New York, 332 U.S. 261,

282 (1947)). Elsewhere this Court has referred to the

"controversies [that] have raged about the cryptic and abstract

words of the Due Process Clause." Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 313 (1950). Because the Equal

Protection and Due Process Clauses embrace both majestic and

cryptic qualities, it is understandable that in this area the Court

would respect "congressional resourcefulness and congressional

responsibility for implementing the Amendment." Morgan, 384

USS. at 648.

The majestic generalities of the Fourteenth Amendment

become far less abstract once the subject matter changes from

equal protection or procedural due process simpliciter to the Bill

of Rights. Due process rights defined in terms of the First

Amendment, for example, are far more specific than the

amorphous promise of procedural due process.

The test of leg:«’etion which collides with the

Fourteenth imendment, because it also collides

with the principles of the First, is much more

definite than the test when only the Fourteenth is

involved. Much of the vagueness of the due

process clause disappears when the specific

prohibitions of the First become its standard.

1° See Jay S. Bybee, Taking Liberties With the First Amendment:

Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L.

Rev. 1539 (1995).

23.

West Virginia Bd. of Educ. v. Barnette, 3° ‘J.S. 624, 639 (1943).

In the process of incorporating most of fs Bill of Rights under

the Fourteenth Amendment, the Court ‘sas moved deliberately

from the position of uncovering rights ir: a "scheme of ordered

liberty" . ’alko v. Connecticut, 302 U.S. 319, 325 (1937)), to

applying we precise text of the Bill of Rights.'' Accordingly, in

Everson v. Board of Education, the Court recognized that "[t]he

First Amendment, as made applicable to the states by the

Fourteenth, commands that a state ‘shall make no law respecting

an establishment of religion, or prohibiting the free exercise

thereof." 530 U.S. 1, 8 (1947).

The process of incorporation has become so complete that

there is no perceptible difference between the First Amendment

as applied to the federal government and the First Amendment

(incorporated through the Fourteenth) as applied to the states.

The Court has long since rejected arguments that First

Amendment rights incorporated against the States are subject to

a lesser standard than when the First Amendment is applied to the

federal government. See, e.g., Interstate Circuit, Inc., v. Dallas,

390 U.S. 676, 706 (1968) (Harlan, J., concurring and dissenting)

(advocating dual standards); Memoirs v. Massachusetts, 383 U.S.

413, 456 (1966) (Harlan, J., dissenting); Smith v. California, 361

U.S. 147, 169-70 (1959) (Harlan, J., concurring and dissenting);

Roth v. United States, 354 U.S. 476, 503 (1957) (Harlan, J.,

concurmng and dissenting); Beauharnais v. Illinois, 343 U.S. 250,

288-91 (1952) (Jackson, J., dissenting); Gitlow v. New York, 268

U.S. 652, 672 (1925) (Holmes, J., dissenting). More recently, the

Court has rejected the argument that the Fourteenth Amendment

"impos[es] more stringent First Amendment limits on the <tates

than the draftsmen imposed on the Federal Government." Marsh

"' See Felix Frankfurter, Memorandum on “Incorporation” of the Bill

of Rights into the Due Process Clause Of the Fourteenth Amendment, 78 Harv.

L. Rev. 746, 747-48 (1965).

-24-

v. Chambers, 463 U.S. 783, 790-91 (1983). The Court has also

relied on the history of the Bill of Rights as the explanation for

those same rights when incorporated against the states. See, e.g.,

Marsh v. Chambers, 463 U.S. at 786-92 (using history of

congressional chaplains in challenge to constitutionality of state

legislative chaplains); New York Times v. Sullivan, 376 U.S. 254,

276-77 (1964) (stating that there is "no force in [the] argument

that the constitutional limitations implicit in the history of the

Sedition Act apply only to Congress and not to the States");

Everson v. Board of Educ., 330 U.S. 1 (1947) (discussing history

of religious liberty during colonial period in challenge to state

busing scheme). In effect, the Court has incorporated the history

of the first eight amendments along with the text itself into the

Fourteenth Amendment Due Process Clause.

Incorporated rights claim an entirely different provenance,

however, than equal protection and procedural due process rights.

The latter, by nature, are rights in which the legislature has had a

firm hand in shaping. Congress may specify the procedural

protections afforded certain rights, and it must routinely make

judgments about equal treatment in the allocation of scarce

governmental resources. In such cases, some judicial deference

is appropriate. See Richmond v. J.A. Croson Co., 488 U.S. 469,

490 (1989) (O'Connor, J.; plurality opinion); Bowen v. Gilliard,

483 U.S. 587, 598 (1987). Because these are matters on which

Congress has experience, it might be concluded that Congress

could use the Morgan power to correct legislation of the states.

All of this suggests that a different result should obtain

when Congress attempts to use the Morgan power to enforce the

specific commands of the Bill of Rights. Incorporated rights are

not matters upon which Congress has great legislative expertise.

Matters involving speech and press, search and seizure, self-

incrimination, and impartial juries are not areas to which the

Court has felt the same obligation of deference. See, e.g., Turner

" acetate a

CRM Be WO Aca ecient nc denne nae

-25-

Broadcasting System v. FCC, §12 US. __» 114 S. Ct. 2445,

2471 (1994); Sable Communications of Calif., Inc. v. FCC, 492

U.S. 115, 129 (1989); Landmark Conimunications, Inc. y.

Virginia, 435 U.S. 829, 843 (1978).

Moreover, among the rights guaranteed in the Bill of

Rights, the First Amendment is unique, and the Morgan power

should not extend to revising the Court's Opinions as a means of

"enforc[ing]" the Fourteenth Amendment. By its plain terms, the

First Amendment binds Congress alone. And if reference to

"Congress" were not sufficiently clear, the Amendment

reemphasizes that it is a prohibition on the making of laws.'? Not

only does Congress not have the same experience with the First

Amendment as it has with equal protection and due process, the

Constitution declares Congress ill-suited to acquire or exercise

such expertise.

The declaration of congressional disability embodied in

the words "Congress shall make no law" was placed in the First

Amendment by design. James Madison's original proposal began,

“no religion shall be established by law... ." 1 The Debates and

Proceedings in the Congress of the United States 729 (Aug. 15,

1789) (Gales & Seaton, 1834). When Representative Huntington

objected that this language might be "extremely hurtful to the

cause of religion" and would forbid federal courts from enforcing

contracts between congregations and their ministers in the

” In this regard, compare Article I, Section 9, Clauses 2 and 3.

Clause 2 provides that “Habeas Corpus shall not be suspended, uniess when

in Cases of Rebellion or Invasion the public Safety may require it.” The

Clause binds all of the departments of the federal government. By contrast,

Clause 3 states: “No Bill of Attainder or ex post facto Law shall be passed”

(emphasis added). Section 3 applies to the law making branches and not to the

judiciary, whose review is necessarily retrospective. See Akhil Reed Amar,

The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1205 n.330 (1991)

(citing John Hart Ely, Democracy and Distrust 90 (1980)).

-26-

Northeast, the drafters responded by changing the proposed

amendment to its present form of "Congress shall make no law."

Id. at 730. The drafters later extended the language to speech,

press and petition. These changes ensured that the federal

judiciary could enforce state laws respecting religion, speech and

press in cases properly within federal jurisdiction.'* These

changes deliberately left the judiciary free to issue injunctive prior

restraints when equity so required.* The Constitution

consciously uses the term "Congress" in the First Amendment.

The framers of the Fourteenth Amendment recognized the

unique status of the First Amendment. During the debates of

1866, Representative Hale commented that the guarantees of the

Bill of Rights "are not matters upon which legislation can be

based. They begin with the proposition that 'Congress shall make

no law',... and... [t]hroughout they provide safeguards to be

enforced by the courts, and not to be exercised by the

Legislature." Cong. Globe, 39th Cong., Ist Sess. 1064 (1866)

(emphasis in original). See also id. at 1270 (statement of Rep.

Mark DeWolfe Howe, The Garden and the Wilderness 22-23

(1965); Mark P. Denbeaux, The First Word of the First Amendment, 80 Nw.

U.L. Rev. 1156 (1986).

“ Leonard W. Levy, Freedom of the Press from Zenger to Jefferson

(1966); Leo Pfeffer, Church, State & Freedom 115-16 (1953); Leonard W.

Levy, The Legacy Reexamined, 37 Stan. L. Rev. 767, 767 (1985); Leonard W.

Levy, On the Origins of the Press Clause, 32 U.C.L.A. L. Rev. 177, 206-07

(1984). Professor Meiklejohn's question is as relevant today as it was forty

years ago: “The fact of governmental power is not, then, a proof of

congressional power. . . . [T]he question before us is not, ‘Has the government

of the United States authority to nullify the First Amendment, wholly or in

part." Our very different question is, ‘Has Congress that authority?'"

Alexander Meiklejohn, What Does the First Amendment Mean?, 20 U. Chi.

L. Rev. 461, 465 (1953). The Department of Justice has itself suggested this

question. See Department of Justice, Office of Legal Policy, Report to the

Attorney General: Religious Liberty under the Free Exercise Clause 16-17 &

nn. 24-25 (1986).

7D

Kerr). Indeed, Hale suggested that the opening phrase in the First

Amendment, "Congress shall make no law," might be "a sufficient

prohibition" against further legislation. Jd. at 1064.

Representative Rogers observed that "any power to override a

State and settle . . . the rights, privileges, and immunities of

citizens in the several States . . . was left entirely for the courts."

Id. at app. 133.

Even more to the point, in the enforcement debates of

1871, members of Congress expressly stated that Congress's

general powers under Section 5 could not trump Congress's

specific disability in the First Amendment. As Senator Bayard

stated, "an implied power to Congress" could not overcome the

Bill of Rights, which was “a distinct and affirmative inhibition of

power to Congress." Cong. Globe, 42d Cong., Ist Sess. app. 242

(1871). Perhaps most presciently, Senator Stockton denied that

the First Amendment could be enforced through Section 5:

No act of Congress can authorize or make a law

respecting an establishment of religion, or

prohibiting the free exercise thereof. or abridging

the freedom of speech or of the press. Would it be

appropriate legislation to enforce this amendment

that Congress should pass an act prohibiting a

State from doing so or directing it to do so?

Congress is simply restrained from doing this

itself.

Id. at 572.

Although Congress is disqualified from prescribing

substantive First Amendment standards, this Court need not

conclude in this case that Congress is barred from enacting any

legislation to enforce First Amendment rights. It need only

conclude that Congress may not exercise the Morgan power to

-28-

command state accommodation of religion when this Court has

held that the states are not so constitutionally compelled. Nothing

we have said here infringes Congress's power to correct state laws

or practices that violate the First Amendment. Congress may

continue to enforce the First Amendment through remedial

provisions such as 42 U.S.C. § 1983. But neither the First

Amendment nor Section 5 will support Congress's attempt to

correct this Court and instruct the states. RFRA is simply beyond

Congress's power.

wna

-29-

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

Jay S. Bybee Ronald D. Maines

(Counsel of Record) R. Shawn Gunnarson

6516 Millstone Avenue MAINES & LOEB, PLLC

Baton Rouge, LA 70808 2300 M Street, N.W.,

(504) 388-8707 Suite 900

Washington, D.C. 20037

(202) 223-2817

November 1996