A power expressly granted to Congress in an amendment to the Constitution to “enforce” provisions of that amendment “by appropriate legislation.”

Of the twenty-seven amendments to the Constitution, eight have enforcement clauses at the end, including the now-repealed Eighteenth Amendment. Of the remaining seven, the Thirteenth, Fourteenth and Fifteenth, commonly referred to as the Civil War Amendments, share the purpose of ensuring former slaves equality of opportunity and full citizenship. Despite the obligatory inclusion of the enforcement clause at the end of each, the remaining four amendments the Nineteenth (female suffrage), Twenty-third (electoral vote for the District of Columbia), Twenty-fourth (elimination of the poll tax in national elections), and Twenty-sixth (lowering of the voting age to eighteen) have shown little need for congressional enforcement.

The concept central to any discussion of congressional enforcement is discrimination. Where there is no pattern of willful discrimination, there is no issue of denial or abridgment of stated rights or privileges, and, hence, no issue of “enforcing” them. Correctly understood, an enforcement is a congressional remedy for a problem. Congress exercises this power lawfully when it steps in to cure a perceived problem. Congress abuses that power when it merely seeks to embellish upon the provisions of an amendment it does not like.

The remedial or corrective nature of the power of enforcement was underscored by the Supreme Court in its 1883 landmark decision in the Civil Rights Cases[case]Civil Rights Cases[Civil Rights Cases]. Writing for the court, Justice Joseph Bradley wrote that the problem with the 1875 Civil Rights Act was that it made “no reference whatever to any supposed or apprehended violation of the Fourteenth Amendment on the part of the States.” The 1875 law was “not corrective” at all but, instead, “primary and direct” in its aim, which was to “supersede” and “displace” existing state laws, in an area traditionally reserved for states’ police power. Show proof that the “laws themselves make any unjust discrimination,” wrote Bradley; then, “Congress has full power to afford a remedy under that amendment.…” In 1997, in Boerne v. Flores, which touched upon the same enforcement clause, the Supreme Court’s majority stated that the amendment’s “history confirms the remedial, rather than substantive, nature of the Enforcement Clause.” Justice Anthony M. Kennedy went on to invoke the 1883 precedent as “confirming” the “remedial and preventive nature of Congress’s enforcement power, and the limitation inherent in the power.”

The first of these “enforcement” amendments, the ThirteenthThirteenth Amendment, was declared ratified in December, 1865, eight months after the surrender of the Confederate states. Then, responding to the alarming spread of black codes in the defeated states, Congress enacted the Civil Rights Act of 1866 under the amendment’s enforcement power, granting former slaves U.S. citizenship, armed with the usual rights of free people to buy, own, inherit, and lease property; to make contracts; to testify in court; and so on. The statute was passed over President Andrew Johnson’s veto, but problems lay ahead because of the bitterness generated by the law’s sweep and what many regarded as its vindictiveness. Congress undertook to add a new amendment in hopes of validating the controversial law; the Fourteenth AmendmentFourteenth Amendment was ratified in 1868.

In 1870 Congress enacted a law to reinforce the prohibitions of the 1866 law while, at the same time, setting out criminal sanctions for interfering with the right to vote, now guaranteed under the Fifteenth AmendmentFifteenth Amendment, ratified earlier that year. For a while the 1870 law was called the Enforcement Act. Then, Congress enacted the Civil Rights Act of 1871 as an amendment to that Enforcement Act, and a year later it enacted the Ku Klux Klan Act as an enforcement of the equal protection provision of the Fourteenth Amendment. The most important civil rights law since 1866, however, was the Civil Rights Act of 1875Civil Rights Act of 1875, sometimes referred to as the Second Civil Rights Act. It was designed to ensure “the full and equal enjoyment of the accommodations,” imposing penalties for violations. As noted earlier, the Supreme Court had difficulty with this law as an enforcement of an amendment. It struck it down in 1883, against a bitter dissent from Justice John Marshall Harlan, who argued that private discrimination against blacks could be prohibited by Congress under the Thirteenth Amendment, whose intent he interpreted to be the eradication of slavery, “not simply of the institution, but of its badges and incidents.”

No new federal civil rights law was enacted until 1957; the damage of the 1883 ruling had become evident. Emboldened by the eclipse of congressional power of “enforcement,” the southern states began enacting Jim Crow laws. Then, segregation received its judicial blessing in 1896 when the Supreme Court declared in Plessy v. Ferguson, again against Harlan’s lone dissent, that there was no violation of “equal protection of the laws” in public accommodations so long as blacks were given separate but equal facilities.

In 1968, having recently upheld provisions of the 1964 Civil Rights Act as a valid use of Congress’s commerce power and provisions of the 1965 Voting Rights Act as an enforcement of the Fifteenth Amendment, the Court under Chief Justice Earl Warren now had an opportunity to revisit the 1866 Civil Rights Act, and in so doing it revived Harlan’s expansive interpretation of the Thirteenth Amendment. The court ruled, in the case of Jones v. Alfred H. Mayer Co., that private racial discrimination in the sale and rental of housing was amply prohibited by the 1866 law and that those prohibitions were a valid exercise of the enforcement power under the Thirteenth Amendment. In 1976 Jones’s reading of the Thirteenth Amendment was reaffirmed by the Burger Court in Runyon v. McCrary. In 1989 the Court under Chief Justice William H. Rehnquist was widely expected to overturn these expansive readings of the Thirteenth Amendment in Patterson v. McLean Credit Union. However, the Court chose not to do so. There was “no special justification…for overruling Runyon,” said the Court, for its interpretation of the 1866 law was “not inconsistent with the prevailing sense of justice in this country.”

• Conkle, Daniel O. “The Religious Freedom Restoration Act: The Constitutional Significance of an Unconstitutional Statute.” Montana Law Review 59 (1995): 39.
• Cover, Robert. “The Origins of Judicial Activism in the Protection of Minorities.” Yale Law Journal 91(1982): 1287.
• Hyman, Harold, and William Wiecek. Equal Justice Under Law: Constitutional Development 1835-1875. New York: Harper & Row, 1982.
• Van Alstyne, William, and Kenneth Karst. “State Action.” Stanford University Law Review 14 (1961): 3.

Boerne v. Flores

Civil Rights Acts

Civil rights and liberties

Civil Rights Cases

Constitutional amendment process

Fifteenth Amendment

Fourteenth Amendment

Harlan, John Marshall

Jones v. Alfred H. Mayer Co.

Patterson v. McLean Credit Union

Runyon v. McCrary

State action

Thirteenth Amendment