The "How" of Enforcing the Fourteenth Amendment: How the Rehnquist Court's Treatment of Implementation, Not Interpretation, Is the True Post-Boerne Failing


This article argues that the severe limits the Rehnquist Court imposed on Congress’ power to enforce the Fourteenth Amendment did not stem primarily from the Court’s treatment of Congress’ interpretive powers in City of Boerne v. Flores, as most commentators have assumed, but rather from the Court’s treatment of Congress’ assessments regarding implementation in the cases that followed Boerne (Kimel, Garrett, Hibbs, and Lane). The article provides a new framework for assessing Congress’ power to pass a law under Section 5 of the Fourteenth Amendment – a framework that adheres, in the main, to the Court’s 14§5 doctrine in Boerne and earlier cases, but that teases out the crucial differences between interpretation and implementation. The article goes on to apply this framework to the Court’s key 14§5 rulings. This process reveals that, even if one were to accept the Court’s lack of deference to Congress’ interpretation of the Fourteenth Amendment, considerable room still exists for Congress to choose the means of implementing that Amendment. A 14§5 jurisprudence that embraces judicial deference to Congress’ views on implementation is compatible with both City of Boerne and with the key 14§5 decisions of the Warren Court. Such a jurisprudence is presented in this article.


Civil Rights and Discrimination | Constitutional Law

Date of this Version

January 2007