Georgetown Center for the Constitution

Arguing that originalism conflicts with current Fourteenth Amendment jurisprudence about the scope of the enforcement power. Contending that an originalist reading of Section 5 supports broad judicial deference to Congress’s interpretations of the Constitution and that Congress does not have to follow an originalist methodology when interpreting their own work.

Discussing whether Congress could enforce the Second Amendment through legislation. Arguing that the Court’s current Enforcement Clause cases are divorced from the Clause’s original meaning.

Arguing that scholars should not talk about incorporation, but rather a more historically contextual investigation of the original meaning of the Fourteenth Amendment. Assessing the discussions of incorporation that emerged at the time of the New Deal and their divorce from incorporated texts in 1787.

Examining the history and original public meaning of the enforcement power, including that it was largely understood as a federalism principle. Arguing that Congress’s ban on partial-birth abortions is not a valid exercise of Congress’s enforcement power.

Arguing that the Rehnquist Court’s juriscentric approach (that Congress lacks power to independently interpret the Constitution) is inconsistent with original meaning. Arguing that the Framers viewed Congress as the primary protector of citizens’ rights. Discussing rights and their enforcement in the antebellum era, as well as Congress’s emerging role in the reconstruction era as the prime enforcer of rights.

Arguing that the Court’s approach in City of Boerne v. Flores was overly judge-centric and incorrect because Congress has equal power to interpret and enforce the Constitution. Discussing the original public meaning of “to enforce” in 1868 and contending that the original public meaning of Section 5, not its legislative history, should control.

Arguing that the historical background of the Fourteenth Amendment’s framing and its early applications display a connection between Congress’s Section 5 enforcement power and the Privileges or Immunities Clause. 

Discussing the Court’s use of history in City of Boerne v. Flores, contending that it erred in failing to properly attend to Congress’s early consideration of a prior version of the Amendment, the congressional debate on the Amendment from April to June of 1866, and the discussion of the Ku Klux Klan Act in 1871.

Arguing that the Court improperly tightened the test for prophylactic legislation in City of Boerne v. Flores and that the original meaning of the Fourteenth Amendment supports the means-ends, “rational relationship” test of McCulloch v. Maryland.

Arguing that Congress lacks the textual authority to constrain state law above and beyond the constraints imposed by the Fourteenth Amendment. Analyzing whether Section 5 requires the judiciary to defer to Congress’s legal conclusions and what authority Section 5 actually cedes to Congress. Concluding that the grant of power is quite limited and that Congress has power to enact penalties for violations of the Fourteenth Amendment and the ability to create agencies to enforce the Fourteenth Amendment.

Arguing that City of Boerne v. Flores highlighted some of the most important interpretative issues, including whether Congress and the judiciary both have power to interpret the Constitution. Arguing that the independent judgment of Congress on a close constitutional question should make a difference under Section 5. Claiming that Congress should not be bound by constraints (such as the need to adopt a less intrusive interpretation from a range of possible ones) when exercising its Section 5 power to interpret the Bill of Rights.

In the context of a larger article about whether Brown v. Board of Education can be justified on originalist grounds, discussing some of the legislative history of Section 5. Noting that some anti-abolitionist legislators wanted a narrow construction of the Section 5 power. Exploring five potential constructions of the relationship between legislation passed under Section 5 and the Fourteenth Amendment as a whole.