Equal protection by law: Federal antidiscrimination legislation after Morrison and Kimel

Yale Law Journal

Volumn 110, Issue 3, 2000, Pages 441-525

  Post, Robert C ^a   Siegel, Reva B ^a  

^a NONE

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EID: 0039581491     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797522     Document Type: Article

References (331)

1. The relevant secüons of the Fourteenth Amendment provide: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . . . Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. U.S. CONST, amend. XIV, §§ 1,5.
2. 120 S. Ct. 631 (2000).
3. 29 U.S.C. §§ 621-634 (1994 & Supp. III 1997).
4. 120S. Ct. 1740(2000).
5. Pub. L. No. 103-322, 108 Stat. 1902 (1994).
6. The provision that was struck down can be found at 42 U.S.C. § 13981 (1994).
7. For a discussion, see Walter Dellinger & Jonathan Hacker, 14th Amendment Is Real Issue in Federalism Cases, NAT'L L.J., Aug. 7, 2000, at A28.
8. Indeed, the disagreement was so intense that the four dissenting Justices explicitly refused to be bound by "stare decisis" and "to accept" recent decisions "as controlling precedents." Kimel v. Fla. Bd. of Regents, 120 S. Ct. 631, 653 (2000) (Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ., dissenting). Stevens concluded: "The kind of judicial activism manifested in cases like Seminole Tribe . . . represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises." Id. at 653-54 (citations omitted). The exasperation of the majority is also evident: "Justice Stevens disputes that well-established precedent again. . . . [T]he present dissenters' refusal to accept the validity and natural import of decisions . . . makes it difficult to engage in additional meaningful debate on the place of state sovereign immunity in the Constitution." Id. at 643 (citations omitted).
9. Morrison, 120 S. Ct. at 1759 (Souter, J., dissenting); id. at 1774 (Breyer, J., dissenting).
10. In Kimel, the four dissenters were willing to address only the question of Eleventh Amendment immunity. 120 S. Ct. at 651 (Stevens, J., dissenting). Indeed, the dissenters stressed that "the Seminole Tribe decision unnecessarily forces the Court to resolve vexing questions of constitutional law respecting Congress' § 5 authority." Id. at 653. In Morrison, Justice Breyer, joined by Justice Stevens, doubted "the Court's reasoning rejecting" congressional Sections power, 120 S. Ct. at 1778 (Breyer, J., dissenting), but he found it unnecessary to "answer the §5 question, which I would leave for more thorough analysis if necessary on another occasion," id. at 1780. Justices Souter and Ginsburg did not address the Section 5 issue at all. This same pattern held true in the Court's decision in City of Boerne v. Flores, 521 U.S. 507 (1997), which was the Court's first major opinion to address Section 5 power in almost twenty years. In Boerne, all the Justices except Souter and Breyer concurred in the Court's conclusion that Congress was without Section 5 power to enact the Religious Freedom Restoration Act. Justices Souter and Breyer did not reach the question. Only in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), were four Justices-Stevens, Souter, Ginsburg, and Breyer - willing to confront the Section 5 question directly and to uphold an exercise of Section 5 power. At issue in Florida Prepaid was the Patent Remedy Act, 35 U.S.C. §§ 271(h), 296(a) (1994), which authorized suits for patent infringements against states. 527 U.S. at 648 (Stevens, J., dissenting). Federal protection for patent property rights is, of course, at some remove from the antidiscrimination values that historically lay at the heart of the Fourteenth Amendment and its Section 5 enforcement power. See Strauder v. West Virginia, 100 U.S. 303. 310 (1879) ("Its aim was against discrimination because of race or color.").
11. Heart of Atlanta Motel v. United States, 379 U.S. 241. 250-52 (1964) (reserving the question of congressional power to enact the Civil Rights Act of 1964 under Section 5 of the Fourteenth Amendment).
12. Infra text accompanying note 22. 13. Other recent Section 5 cases (not involving the Equal Protection Clause) include Boerne, 521 U.S. 507, and Florida Prepaid \: College Savings Bank. 527 U.S. 627.
13. Boerne. 521 U.S. at 536.
14. The ultimate question concerns whether Congress has acted within the authority of its enumerated powers. Some have viewed this as essentially a question of federalism. See, e.g., William Cohen, Congressional Power To Interpret Due Process and Equal Protection, 27 STAN. L REV. 603 (1975); David Cole, The Value of Seeing Things Differently: Boerne v. Flores and Congressional Enforcement of the Bill of Rights, 1997 SUP. CT. REV. 31, 40-44. But query whether the values of federalism entirely exhaust the function "of the Court in keeping Congress within the boundary of its enumerated powers." William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 DUKE LJ. 291,318(1996).
15. Infra note 108 and accompanying text.
16. Thomas W. Beimers, Searching for the Structural Vision of City of Boerne v. Flores: Vertical and Horizontal Tensions in the New Constitutional Architecture, 26 HASTINGS CONST. L.Q. 789, 790 n.7 (1999).
17. The Civil Rights Cases, 109 U.S. 3, 11 (1883). For a contemporary statement of this concern, see Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 287-88 (1993) (Kennedy, J., concurring).
18. 347 U.S. 483 (1954).
19. Id.
20. Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 1971, 2000(a) (1994)).
21. Civil Rights Act of 1964 § 201, 78 Stat. at 243. For example, the junsdictional provisions of Title II of the Act, which prohibits discrimination in places of public accommodation, trace the contours of both Section 5 and the Commerce Clause. The Act applies to a public accommodation "if its operations affect commerce, or if discrimination or segregation by it is supported by State action." 42 U.S.C. § 2000a(b) (1994) (emphasis added). The Senate Report noted that the Supreme Court had in 1883 in the Civil Rights Cases, struck down a closely analogous federal statute that was based upon Section 5 power. But the Report explains: There is a large body of legal thought that believes the Court would either reverse the earlier decision if the question were again presented or that changed circumstances in the intervening 80 years would make it possible for the earlier decision to be distinguished. That question, however, was not before the committee, for the instant measure is based on the commerce clause . . . of the Constitution. S. REP. NO. 88-872, at 12 (1964), reprinted in 1964 U.S.C.C.A.N. 2355, 2366. The House Report said simply that "[a] number of provisions of the Constitution of the United States clearly supply the means 'to secure these rights . . . .'" H.R. REP. No. 88-914, at 18 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2393. For a full discussion of the legislative history, see DONALD G. MORGAN, CONGRESS AND THE CONSTITUTION: A STUDY OF RESPONSIBILITY 292-330 (1966), which recounts in detail how Congress deliberated about the scope of its powers under the Commerce Clause and the Fourteenth Amendment to enact the public accommodations provisions of the Civil Rights Act, and see also Heart of Atlanta Motel v. United States, 379 U.S. 241, 292-93 n.1 (1964) (Goldberg, J., concurring), which discusses the legislative history of the Act.
22. Heart of Atlanta, 379 U.S. at 258; see also Katzenbach v. McClung, 379 U.S. 294, 304 (1964). In Heart of Atlanta, the Court stated: Our study of the legislative record . . . has brought us to the conclusion that Congress possessed ample power in this regard, and we have therefore not considered the other grounds relied upon. This is not to say that the remaining authority upon which it acted was not adequate, a question upon which we do not pass, but merely that since the commerce power is sufficient for our decision here we have considered it alone. Heart of Atlanta, 379 U.S. at 250. Justice Douglas, writing separately, observed that "the result reached by the Court is for me much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual not with the impact on commerce of local activities or vice versa." Id. at 279 (Douglas, J., concurring); see also id. at 291-93 (Goldberg, J., concurring).
23. See, e.g., MANNING MARABLE, RACE, REFORM AND REBELLION: THE SECOND RECONSTRUCTION IN BLACK AMERICA, 1945-1990 (2d ed. 1991).
24. See, e.g., Americans with Disabilities Act of 1990, § 2, 42 U.S.C. § 12101(b)(4) (1994); Violence Against Women Act of 1994, 42 U.S.C. § 13981 (a) (1994); Freedom of Access to Clinic Entrances Act of 1994, Pub. L. No. 103-259, § 2, 108 Stat. 694, 694; H.R. REP. NO. 92-238, at 19 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2154 (Equal Employment Opportunity Act of 1972); S. REP. NO. 90-721, at 7 (1967), reprinted in 1968 U.S.C.C.A.N. 1837, 1843 (Civil Rights Act of 1968).
25. For examples of the Court refusing to reach the Section 5 question, see infra note 280.
26. There were, however, some notable exceptions. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (upholding that Congress had authority under Section 5 to extend Title VII of the Civil Rights Act of 1964 to state employees).
27. Infra text accompanying notes 280-283.
28. There are, for example, discrepancies between the Court's treatment of pregnancy under Title VII and its treatment of pregnancy under the Fourteenth Amendment. Compare Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284 (1987) (stating that the first clause of the Pregnancy Discrimination Amendment "add[s] pregnancy to the definition of sex discrimination prohibited by Title VII"), and Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983) ("The 1978 Act makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions."), with Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974) ("While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification."). There are also discrepancies between Title VII's requirements for proving discrimination and those of the Fourteenth Amendment. Compare Griggs v. Duke Power Co., 401 U.S. 424 (1971) (allowing claims of discrimination in cases of disparate impact), with Washington v. Davis, 426 U.S. 229 (1976) (requiring plaintiffs alleging discrimination to prove that the state acted with discriminatory purpose).
29. 514 U.S. 549(1995).
30. United States v. Morrison. 120 S. Ct. 1740, 1740-54 (2000).
31. Id. at 1751-52.
32. Id. at 1751.
33. Id. at 1753.
34. Id. at 1752.
35. Id. at 1763 (Souter, J., dissenting).
36. Id. at 1754.
37. See id. at 1753-54; United States v. Lopez, 514 U.S. 549, 564 (1995).
38. Kirchberg v. Feenstra, 450 U.S. 455 (1981); Orr v. Orr, 440 U.S. 268 (1979); Frontiere v. Richardson, 411 U.S. 677 (1973); Reed v. Reed, 404 U.S. 71 (1971); Loving v. Virginia, 388 U.S. 1 (1967); see infra text accompanying notes 291-293.
39. 517 U.S. 44 (1996).
40. Id. at 72. For a good discussion of Séminale Tribe, see Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 SUP. CT. REV. 1.
41. 527 U.S. 706 (1999).
42. Id. at 712. For a critique, see Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011 (2000).
43. Edelman v. Jordan, 415 U.S. 651, 668 (1974). There are several important exceptions to Eleventh Amendment immunity. The most significant is that it does not extend to the kinds of "actions against state officers for injunctive or declaratory relief" that were approved in Ex parte Young, 209 U.S. 123 (1908). Alden, 527 U.S. at 757. For a discussion of this distinction, see Papasan v. Allain, 478 U.S. 265 (1986); and Carlos Manuel Vázquez, Night and Day: Coeur d'Alene, Breard, and the Unraveling of the Prospective-Retrospective Distinction in Eleventh Amendment Doctrine, 87 GEO. L.J. 1 (1998). Eleventh Amendment immunity does not apply to suits by the United States, nor does it "extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State." Alden, 527 U.S. at 755-56; see also Conley v. Vill. of Bedford Park, 215 F.3d 703, 709 n.3 (7th Cir. 2000); Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 331 n.6 (3d Cir. 2000); Horwitz v. Bd. of Educ., No. 98-C-6490, 2000 U.S. Dist. LEXIS 8021, at * 9-10 (N.D. 111. June 6, 2000). Eleventh Amendment immunity does not prohibit "a suit for money damages . . . prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally." Alden, 527 U.S. at 757. Eleventh Amendment immunity also may be waived. In a recent decision, however, the Court suggested that there may be limits to Congress's authority to condition the receipt of "federal funding" on the express waiver of Eleventh Amendment immunity. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 687 (1999).
44. Meltzer, supra note 43, at 1026.
45. States cannot assert Eleventh Amendment immunity against the federal government. Supra note 44.
46. Alden, 527 U.S. at 756; Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
47. Washington v. Davis, 426 U.S. 229, 239 (1976).
48. 42 U.S.C. § 2000e-2(k)(I)(A)(i) (1994); Griggs v. Duke Power Co., 401 U.S. 424 (1971). Congress codified the disparate impact standard in the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, 1074-76, which was meant to reverse the Supreme Court's interpretation of Title VII in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
49. In re Employment Discrimination Litig. Against Alabama, 198 F.3d 1305, 1322 (11th Cir. 1999).
50. We should add that it is not at all clear that the Eleventh Circuit meant for its own conclusion to be taken seriously, for the court goes out of its way to emphasize the view that disparate impact doctrine can be applied to the states without alteration. The question, however, is whether this view is plausible or sustainable if "the core injury targeted" by such doctrine is truly "intentional discrimination."
51. 521 U.S. 507 (1997).
52. Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §§ 2000bb to 2000bb-4 (1994))
53. The Court subsequently applied Boeme in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999).
54. Boerne, 521 U.S. at 512 (discussing Employment Div. v. Smith, 494 U.S. 872 (1990)).
55. 374 U.S. 398 (1963).
56. For a summary of the relevant holding of Smith, see Boerne, 521 U.S. at 512-14.
57. 42 U.S.C. § 2000bb(b)(1) (1994).
58. RFRA applied "to all Federal and State law, and the implementation ofthat law, whether statutory or otherwise." Id. § 2000bb-3(a).
59. Boerne, 521 U.S. at 517 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1960)).
60. Id. 62. 384 U.S. 641.
61. Boerne, 521 U.S. at 536 (quoting Morgan, 384 U.S. at 651).
62. Id. at 519.
63. Id. (first alteration in original) (citation omitted). This distinction and holding were aimed at the alternate holding of Morgan, which seemed to cede to Congress the power independently to interpret the meaning of Section 1. See Boerne, 521 U.S. at 527-29; Robert A. Burt. Miranda and Title II: A Morganatic Marriage, 1969 SUP. CT. REV. 81, 83-84. For a discussion of the literature, see Gary C. Leedes, State Action Limitations on Courts and Congressional Power, 60 N.C. L. REV. 747, 778-82 (1982); and Bonnie I. Robin-Vergeer, Disposing of the Red Herrings: A Defense of the Religious Freedom Restoration Act, 69 S. CAL. L. REV. 589 (1996).
64. Boerne, 521 U.S. at 529 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
65. See supra text accompanying note 58 (quoting RFRA's statement of purpose).
66. Boerne, 521 U.S. at 536.
67. Id. 70. Id. at 519-20.
68. Christopher L. Eisgruber & Lawrence G. Sager. Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L. REV. 437, 469 (1994); id. at 473 ("That is what RFRA's supporters wanted, and that is what they got."); see also Douglas Laycock, RFRA, Congress, and the Ratchet, 56 MONT. L. REV. 145, 153 (1995).
69. Christopher L. Eisgruber & Lawrence G. Sager. Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L. REV. 437, 469 (1994); id. at 473 ("That is what RFRA's supporters wanted, and that is what they got."); see also Douglas Laycock, RFRA, Congress, and the Ratchet, 56 MONT. L. REV. 145, 153 (1995).
70. Christopher L. Eisgruber & Lawrence G. Sager. Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L. REV. 437, 469 (1994); id. at 473 ("That is what RFRA's supporters wanted, and that is what they got."); see also Douglas Laycock, RFRA, Congress, and the Ratchet, 56 MONT. L. REV. 145, 153 (1995).
71. Boerne, 521 U.S. at 520.
72. Id. 74. Id. at 532.
73. The ADEA retains its force, of course, as a valid exercise of the commerce power. It is thus fully applicable to private parties and to cities, and it is enforceable against states by the federal government. See supra note 44.
74. Fair Labor Standards Act of 1974, Pub. L. No. 93-259, § 28, 88 Stat. 74.
75. 77. 460 U.S. 226 (1983).
76. Id. at 243. The Court added: "We need not decide whether it could also be upheld as an exercise of Congress's powers under § 5 of the Fourteenth Amendment" Id.; see also Gregory v. Ashcroft 501 U.S. 452, 468-70 (1991) (discussing EEOC, 460 U.S. 226); EEOC 460 U.S. at 234 & n.6 (listing district court opinions that had upheld the extension "as an exercise of Congress power under either the Commerce Clause or § 5 of the Fourteenth Amendment").
77. Justices Stevens, Souter, Ginsburg, and Breyer dissented in Kernel on the grounds that Seminole Tribe was wrongly decided. Kimel v. Fla. Bd. of Regents, 120 S. Ct. 631, 653 (2000) (Stevens, J., dissenting); see also supra notes 8, 10.
78. See, e.g., Gregory, 501 U.S. at 470-71; Vance v. Bradley, 440 U.S. 93, 97 (1979).
79. Kimel, 120 S. Ct. at 644 (quoting City of Boerne v. Flores, 521 U.S. 507, 536 (1997)).
80. 2. Id.
81. Id. at 648.
82. For a discussion of the difficulties of this distinction, see, for example, Douglas Laycock, Conceptual Gulfs in City of Boerne v. Flores, 39 WM. & MARY L. REV. 743, 767-70 (1998).
83. Christopher L. Eisgruber & Lawrence G. Sager, Congressional Power and Religious Liberty Afler City of Boerne v. Flores, 1997 SUP. CT. REV. 79, 87-88.
84. Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647 (1999); see also Kimel, 120 S. Ct. at 645 (applying the test).
85. Boerne, 521 U.S. at 532.
86. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 672 (1999) (emphasis added).
87. 17 U.S. (4 Wheat.) 316 (1819).
88. Id. at 423.
89. For example, in Florida Prepaid v. College Savings Bank, the Court applied Boeme s congruence and proportionality test to determine whether Congress's abrogation of state sovereign immunity from patent claims was intended to remedy potential due process violations, or instead whether "[t]he statute's apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime." 527 U.S. at 647-48. The Court noted that although the latter purposes "are proper Article I concerns," Article I "does not give Congress the power" to abrogate state sovereign immunity. Id. at 648.
90. Boerne, 521 U.S. at 536. As Chief Justice Marshall went on to say in McCulloch, But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power. 17 U.S. (4 Wheat.) at 423.
91. In both Boeme and Kimel, the Court was prepared to accord Congress a good deal of leeway in order to achieve permissible ends. Thus Boerne explicitly reaffirmed the basic principle of Section 5 jurisprudence that properly remedial congressional legislation can prohibit "conduct which is not itself unconstitutional and intrudes into 'legislative spheres of autonomy previously reserved to the States.'" Boeme, 521 U.S. at 518 (citations omitted). Boerne went out of its way to approve earlier relevant precedents, like City of Rome v. United States, 446 U.S. 156 (1980), Oregon v Mitchell, 400 U.S. 112 (1970), South Carolina v. Katzenbach, 383 U.S. 301 (1966), and even Katzenbach v. Morgan, 384 U.S. 641 (1966), in which the Court had interpreted "the sweep of Congress's enforcement power" under the Reconstruction Amendments to extend considerably beyond the bounds of what a court might find to violate these Amendments. Boerne, 521 U.S. at 518. Kimel agreed that Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment. Rather, Congress' power "to enforce" the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text. Kimel v. Fla. Bd. of Regents, 120 S. Ct. 631, 644 (2000) (citations omitted). Kimel recognized that the Constitution does not preclude "Congress from enacting reasonably prophylactic legislation." Id. at 648. When acting remedially for an objective properly within the scope of Section 5 power, therefore, Congress can regulate otherwise constitutional behavior for the instrumental purpose of protecting constitutional rights. It can act both to "prevent . . . constitutional violations," Boerne, 521 U.S. at 535, and to "deter[]" them, id. at 518. It follows from these conclusions that Section 5 legislation will frequently be neither tightly congruent nor proportional to whatever baseline definition of a constitutional violation the Court is prepared to require.
92. Kimel, 120 S. Ct. at 646.
93. Id. at 648.
94. Id. at 647.
95. Id. (quoting Boerne, 521 U.S. at 532).
96. Id at 648. The Court continued: Difficult and intractable problems often require powerful remedies, and we have never held that § 5 precludes Congress from enacting reasonably prophylactic legislation. Our task is to determine whether the ADEA is in fact just such an appropriate remedy or nstead, merely an attempt to substantively redefine the States' legal obligations with respect to age discrimination. One means by which we have made such a determination in the past is by examining the legislative record containing the reasons for Congress's action. Id. 99.
97. Id. at 649.
98. Id. at 650.
99. Id. at 647.
100. Id. at 650.
101. City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
102. For a careful consideration of this issue, see Cole, supra note 15, at 59-71; and Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, 189-92 (1997).
103. Vance v. Bradley, 440 U.S. 93, 97 (1979).
104. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 79 (1911).
105. Vance, 440 U.S. at 111.
106. Erickson v. Bd. of Governors, 207 F.3d 945, 948-49 (7th Cir. 2000) (citation omitted); see also Kazmier v. United States, 225 F.3d 519, 524 (5th Cir. 2000); Cooley v. Miss. Dep't of Transp., 96 F. Supp. 2d 565, 566-67 (S.D. Miss. 2000).
107. Kimel v. Fla. Bd. of Regents, 120 S. Ct. 631, 650 (2000).
108. Of course the procedures for judicial decisionmaking embodied in rational basis review also reflect substantive judicial judgments about the kinds of state decisions that are likely to reflect invidious discrimination, as well as about the meaning of invidious discrimination in particular contexts. See, e.g., infra text accompanying note 126. These procedures also reflect understandings about the limited competence of courts to enforce Section 1 of the Fourteenth Amendment. See infra text accompanying notes 122-123.
109. FCCv Beach Communications, Inc., 508 U.S. 307, 314 (1993).
110. Mass Bd of Ret. v. Murgia, 427 U.S. 307, 314 (1976); see also Beach Communications, 508 U.S. at 314-15 ("On rational-basis review, a classification in a statute comes to us bearing a strong presumption of validity, . . . and those attacking the rationality of the legislative classification have the burden 'to negative every conceivable basis which might support it.'"); Hodel v. Indiana, 452 U.S. 314, 331-32 (1981); McGowan v. Maryland, 366 U.S. 420, 425-26 (1961) ("State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.").
111. Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955) ("The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.").
112. Vill. of Willowbrook v. Olech, 120 S. Ct. 1073, 1075 (2000) (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923)).
113. New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976); Weinberger v. Salfi, 422 U.S. 749, 770 (1975); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 82 (1911).
114. Welch v. Henry, 305 U.S. 134, 146 (1938).
115. Holden v. Hardy, 169 U.S. 366, 398 (1898).
116. N.Y. City Transit Auth. v. Beazer, 440 U.S. 568, 593 n.40 (1979) (citations omitted).
117. Vance v. Bradley, 440 U.S. 93, 97 (1979).
118. Romer v. Evans, 517 U.S. 620, 632 (1996).
119. See, e.g., id. at 620; Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000).
120. Madden v. Kentucky, 309 U.S. 83, 88 (1940); see also Leathers v. Medlock, 499 U.S. 439,451-52 (1991) (quoting Madden, 309 U.S. at 87-88).
121. San Antonio Indep. Sen. Dist. v. Rodriguez, 411 U.S. 1, 31 (1973).
122. Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 661 (1969) (Harlan, J., dissenting)).
123. See, e.g., Pers. Adm'r v. Feeney, 442 U.S. 256, 272 (1979) ("Certain classifications . . . in themselves supply a reason to infer antipathy. Race is the paradigm." ). 126. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-42 (1985) (emphasis 127. See Stephen F. Ross, Legislative Enforcement of Equal Protection, 12 MINN. L. REV. 311, 318-126 (1987).
124. See, e.g., Pers. Adm'r v. Feeney, 442 U.S. 256, 272 (1979) ("Certain classifications . . . in themselves supply a reason to infer antipathy. Race is the paradigm." ). 126. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-42 (1985) (emphasis 127. See Stephen F. Ross, Legislative Enforcement of Equal Protection, 12 MINN. L. REV. 311, 318-126 (1987).
125. Kimel v. Fla. Bd. Regents, 120 S. Ct. 631, 644 (2000). For a discussion of other possible values served by the Boerne test, see infra Pan IV.
126. Kimel, 120 S. Ct. at 650.
127. Id. at 649.
128. See, e.g., Boy Scouts of Am. v. Dale, 120 S. Ct. 2446, 2477-78 (2000) (Stevens, J., dissenting).
129. In Romer v. Evans, 517 U.S. 620, 632 (1996), the Court employed rational basis review to analyze the constitutionality of an amendment to the Colorado Constitution, yet invalidated the state law on the grounds that "the amendment seems inexplicable by anything but animus toward" homosexuals. In this respect, Romer resembles City of Clebume v. Cleburne Living Center, 473 U.S. 432 (1985), where the Court, employing rational basis review, invalidated a permit requirement on the grounds that it "appears to us to rest on an irrational prejudice against the mentally retarded." Id. at 450. Although in the vast majority of cases, courts applying rational basis review to state action challenged as discriminating on the basis of sexual orientation have upheld the regulatory practice, lower courts since Romer have been more inclined to follow the Court's lead and scrutinize challenged practices for unconstitutional animus, even when applying rational basis review. There are a number of recent examples of courts finding that governmental action motivated by animus fails rational basis review. See, e.g., Stemler v. City of Florence, 126 F.3d 856, 874 (6th Cir. 1997) ("[I]t didn't take Romer to tell us that . . . arbitrary state action is contrary to the principle of equal protection of the laws." ); Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279, 1289 (D. Utah 1998) (granting summary judgment for a plaintiff who was fired as a Volleyball coach due to her sexual orientation "[b]ecause a community's animus towards homosexuals can never serve as a legitimate basis for state action"); Glover v. Williamsburg Local Sch. Dist. Bd. of Educ., 20 F. Supp. 2d 1160, 1174 (S.D. Ohio 1998) (finding that a school board violated the Equal Protection Clause when it refused to renew the plaintiffs teaching contract on account of his sexual orientation, because "the Board's decision was motivated by animus toward him as a homosexual" ); Dahl v. Sec'y of the U.S. Navy, 830 F. Supp. 1319, 1335 (E.D. Cal. 1993) (finding that, "[e]ven under the rational basis standard," the Navy's policies excluding homosexuals violated the Equal Protection Clause).
130. Kimel, 120 S. Ct. at 647.
131. Id. at 650.
132. Id. at 648.
133. Some lower courts are now beginning to pursue this line of analysis in order to distinguish Congress's Section 5 power to enact the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (1994), from Congress's Section 5 power to enact the ADEA. Although current doctrine applies rational basis review to both age and disability, these courts stress that" [t]he Kimel Court found that older persons have not suffered from systematic, historic discrimination and that the group protected by the ADEA . . . is not a discrete and insular minority. . . . By contrast, the ADA's legislative findings and record make clear the history of purposeful, pervasive discrimination against persons with disabilities." Lewis v. N.M. Dep't of Health, 94 F. Supp. 2d 1217, 1228 (D.N.M. 2000); see also Davis v. Utah State Tax Comm'n, 96 F. Supp. 2d 1271, 1282-84 (D. Utah 2000). The Court has granted a writ of certiorari in Garrett v. University of Alabama at Birmingham Board of Trustees, 193 F.3d 1214 (11th Cir. 1999), cert, granted, 120 S. Ct. 1669 (2000) (No. 99-1240), to decide this question.
134. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1218 (1978);
135. see also Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. REV. 410, 433-34 (1993) [hereinafter Sager, Justice in Plain Clothes].
136. Kimel, 120 S. Ct. at 644.
137. The political question doctrine represents a simple form of this kind of underenforcement gap. See Baker v. Carr, 369 U.S. 186, 217 (1962) ("Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department . . . .").
138. Pers. Adm'r v. Feeney, 442 U.S. 256, 274 (1979) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971)).
139. Washington v. Davis, 426 U.S. 229, 240 (1976).
140. Feeney, 442 U.S. at 279.
141. Davis 426 U.S. at 244. The Court would later concede that the doctrine of discriminatory purpose was contradicted by "some contrary indications . . . from some of our cases." Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 & n.10 (1977) (citing Wright v. Council of Emporia, 407 U.S. 451, 461-62 (1972); Palmer v. Thompson, 403 U. S. 217, 225 (1971); United States v. O'Brien, 391 U.S. 367, 381-86 (1968)). For an account that situates the Court's interpretive choices in larger historical perspective, see Reva B. Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1129-48 (1997). 144. Davis, 426 U.S. at 245.
142. Id. at 247. For a discussion of the institutionally self-conscious justifications that the Court offered for evaluating equal protection claims brought directly under Section 1 in a discriminatory-purpose framework, see Siegel, supra note 143, at 1137-38 & n.130.
143. Davis. 426 U.S. at 248.
144. For a discussion of this point, see Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 898-99 (1999).
145. Pers. Adm'r v. Feeney, 442 U.S. 256, 272 (1979).
146. When the Court began to apply heightened scrutiny to laws employing gender classifications in the mid-1970s, states modified many laws and doctrines regulating family relations so that they were expressed in gender-neutral terms; these changes often occurred without substantial alteration of the terms on which the relationship was otherwise regulated. For an account of these changes, see Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2188-96 (1996). For a survey of state statutes that illustrates how marital rape doctrine still shapes the criminal law, although often in gender-neutral terms, see Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CAL. L. REV. 1373, 1375, 1484-85 (2000).
147. When the Court began to apply heightened scrutiny to laws employing gender classifications in the mid-1970s, states modified many laws and doctrines regulating family relations so that they were expressed in gender-neutral terms; these changes often occurred without substantial alteration of the terms on which the relationship was otherwise regulated. For an account of these changes, see Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2188-96 (1996). For a survey of state statutes that illustrates how marital rape doctrine still shapes the criminal law, although often in gender-neutral terms, see Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CAL. L. REV. 1373, 1375, 1484-85 (2000).
148. Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 884 (4th Cir. 1999) (en banc) (alteration in original) (citation omitted), aff'd sub nom. United States v. Morrison, 120 S. Ct. 1740 (2000).
149. E.g., Morrison, 120 S. Ct. at 1760-61 n.7 (Souter, J., dissenting) (listing the gender bias task force reports from twenty-one states that Congress considered); id. at 1779 (Breyer, J., dissenting) (citing congressional reports that documented the presence of unconstitutional gender bias in the state court systems).
150. Kimel v. Fla. Bd. of Regents, 120 S. Ct. 631, 648 (2000).
151. Thus, for example, the Court has held since the days of South Carolina v. Katzenbach, 383 U.S. 301 (1966), that Section 2 of the Fifteenth Amendment, which is "coextensive" with Section 5 of the Fourteenth Amendment, City of Rome v. United States, 446 U.S. 156, 208 n.1 (1980) (Rehnquist, J., dissenting), authorizes Congress to "outlaw voting practices that are discriminatory in effect" even "if § 1 of the Amendment prohibits only purposeful discrimination," id. at 173.
152. See, e.g., supra text accompanying note 50. 155. Pers. Adm'r v. Feeney, 442 U.S. 256, 272 (1979).
153. Washington v. Davis, 426 U.S. 229, 248 (1976).
154. City of Rome, 446 U.S. at 179: see also Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). But see Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 306 n.12 (1977).
155. See Levinson, supra note 147, at 917-20.
156. As we discuss later, the Court has explicitly adopted such an institutionally differentiated framework with respect to the enforcement of the Thirteenth Amendment. See infra text accompanying notes 257-260.
157. These suggestions have received support in the scholarly literature. E.g., Burt, supra note 65, at 111-14; Cole, supra note 15, at 61-63; Archibald Cox, The Supreme Court, 1966 Term - Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 121 (1966); Eisgruber & Sager, supra note 85, at 91; McConnell, supra note 104, at 189-92. Lawrence Sager has stressed Congress's unique ability to realize Fourteenth Amendment norms in the face of polycentric difficulties, its ability to overcome entrenched resistance to such norms, and its ability to energize citizens to support such norms. Sager, Justice in Plain Clothes, supra note 137, at 419-28.
158. Kimel v. Fla. Bd. of Regents, 120 S. Ct. 631, 644 (2000).
159. See infra note 187. Such a deferential approach to reviewing Congress's power to enact antidiscrimination legislation under Section 5 does not imply that the Court should adopt an equally deferential approach when reviewing legislation in order to protect individual liberties and fundamental rights under Section 1 of the Fourteenth Amendment or the equal protection component of the Fifth Amendment. See Fullilove v. Klutznick, 448 U.S. 448, 528 n.7 (1980) (Stewart, J., dissenting) ("Neither [Section 2 of the Thirteenth Amendment nor Section 5 of the Fourteenth Amendment] grants to Congress the authority to require the States to flout their obligation under § 1 of the Fourteenth Amendment to afford 'the equal protection of the laws' or the power to enact legislation that itself violates the equal protection component of the Fifth Amendment." ); id. at 548 (Stevens, J., dissenting) ("Congress has broad power to spend money to provide for the 'general Welfare of the United States,' to 'regulate Commerce . . . among the several States,' to enforce the Civil War Amendments, and to discriminate between aliens and citizens. . . . But the exercise of these broad powers is subject to the constraints imposed by the Due Process Clause of the Fifth Amendment. That Clause has both substantive and procedural components; it performs the office of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment in requiring that the federal sovereign act impartially.").
160. Section 13981 authorized victims to sue their attackers "for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate." 42 U.S.C. § 13981 (c) (1994).
161. United States v. Morrison, 120 S. Ct. 1740, 1755 (2000).
162. Id. at 1756
163. Id. at 1756.
164. 106 U.S. 629 (1883).
165. 109 U.S. 3 (1883).
166. Morrison, 120 S. Ct. at 1756 (quoting Harris, 106 U.S. at 629). The Court continued: "We reached a similar conclusion in the Civil Rights Cases. In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the § 5 enforcement power." Id. The Court then proceeded to cite to a series of modern cases holding that state action is required for a violation of the Equal Protection Clause.
167. 383 U.S. 745 (1966). In Guest, six Justices, in two independent opinions, opined that congressional Section 5 legislation could regulate the behavior of private persons.
168. 409 U.S. 418 (1973). In Carter, the Court in a footnote that was dicta cited Guest for the proposition that Congress could "proscribe purely private conduct under § 5 of the Fourteenth Amendment." Id. at 424 n.8.
169. Morrison, 120 S. Ct. at 1756-58.
170. During the 1960s, the possibility that state action standards might differ for Congress acting pursuant to Section 5 than for a court enforcing Section 1 was suggested by jurists across the philosophical spectrum. See infra notes 264-274 and accompanying text.
171. Morrison, 120 S. Ct. at 1755, 1758.
172. E.g., Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972) ("In 1883, this Court in The Civil Rights Cases set forth the essential dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, 'however discriminatory or wrongful,' against which that clause 'erects no shield.'" (citation omitted)). Justice Rehnquist, who authored both Jackson and Moose Lodge, was also the author of Morrison.
173. The Civil Rights Cases, 109 U.S. 3, 14 (1883). Harris, which struck down provisions of the Civil Rights Act of 1871, turns on analogous reasoning: When the State has 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. United States v. Harris. 106 U.S. 629. 639 (1883).
174. Civil Rights Cases, 109 U.S. at 14. For a discussion of the reasoning of Harris and the Civil Rights Cases, see Laurent B. Frantz, Congressional Power To Enforce the Fourteenth Amendment Against Private Acts, 73 YALE L.J. 1353 (1964). Perhaps sensing the marginal relevance of these precedents, the Morrison Court notes that there was abundant evidence . . . to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting § 13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves. Morrison 120 S. Ct. at 1758. But however accurate this may be as an account of the concerns that led Congress to enact the Civil Rights Acts of 1871 and 1875, it is clear that the Court did not premise its decisions about the constitutionality of the 1871 and 1875 Acts on this understanding of the legislative history. Harris explicitly assumes as a ground of its striking down the Civil Rights Act of 1871 that "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." Harris 106 U.S. at 639. Similarly, the opinion in the Civil Rights Cases explicitly assumes that the Civil Rights Act of 1875 was not "predicated" on "any supposed or apprehended violation of the Fourteenth Amendment on the part of the States." Civil Rights Cases, 109 U.S. at 14.
175. Civil Rights Cases, 109 U.S. at 13.
176. Id. at 18.
177. Id. at 14; see Morrison, 120 S. Ct. at 1779 (Breyer, J., dissenting) (providing a similar reading of the Civil Rights Cases); Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation, 56 TENN. L. REV. 291, 307 n.54 (1989) ("Straightforwardly read, Justice Bradley's opinion for the Court in the Civil Rights Cases establishes not that the racially discriminatory practices of nongovernmental innkeepers and carriers are beyond the fourteenth amendment's concern or the reach of its prohibitions, but rather something more like the opposite. . . . The holding is that federal authorities . . . are not authorized by the fourteenth amendment to provide remedies for privately wrought violations of rights that the state is affirmatively obligated to vindicate, unless and until it appears that the state itself is failing to perform this obligation." (citation omitted)).
178. Morrison, 120 S. Ct. at 1758.
179. Id.
180. Id. at 1759.
181. City of Boerne v. Flores, 521 U.S. 507, 535 (1997).
182. Id. at 517 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)); see also Kimel v. Fla. Bd. of Regents, 120 S. Ct. 631, 644 (2000) (" [Section] 5 is an affirmative grant of power to Congress.").
183. Kimel, 120 S. Ct. at 644; Boerne, 521 U.S. at 536 (quoting Katzenbach, 384 U.S. at 651).
184. United States v. Playboy Entm't Group, 120 S. Ct. 1878, 1888 (2000) (referring to "the usual presumption of constitutionality afforded congressional enactments"); see also U.S. Dep't of Labor v. Triplett, 494 U.S. 715, 721 (1990) ("We begin here . . . by noting the heavy presumption of constitutionality to which a 'carefully considered decision of a coequal and representative branch of our Government' is entitled."); Town of Lockport v. Citizens for Cmty. Action 430 U.S. 259, 272 (1977) (noting "the presumption of constitutionality to which every dulyenacted state and federal law is entitled"). The presumption of constitutionality "is the postulate of constitutional adjudication." New York v. O'Neill, 359 U.S. 1, 6 (1959). It is "strong" because it "is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power." United States v. Five Gambling Devices, 346 U.S. 441, 449 (1953).
185. Morrison, 120 S. Ct. at 1759.
186. The prohibition was approved as an exercise of congressional power under Section 2 of the Fifteenth Amendment. See Mitchell, 400 U.S. at 216 (opinion of Harlan, J., concurring m part and dissenting in part); id. at 235-36 (Brennan, White, and Marshall, JJ., concurring in part and dissenting in part); id. at 282-83 (Stewart, J., concurring in part and dissenting in part). But the Court has alway treated Section 2 as "coextensive" with Section 5 of the Fourteenth Amendment. See supra note 153 and accompanying text. Morrison itself, in the passage,quoted in the text accompanying supra note 188, treats the Section 2 remedy of South Carolina v. Katzenbach as interchangeable with the Section 5 remedy of Katzenbach v. Morgan. 191 Mitchell, 400 U.S. at 284 (Stewart, J., concurring in part and dissenting in part). Justice Stewart continued:" In the interests of uniformity, Congress may paint with a much broader brush than may this Court, which must confine itself to me judicial function of deciding individual cases and controversies upon individual records." Id. 192. Id. at 283-84.
187. Letter from Robert Abrams, Attorney General of New York, et al., to Jack Brooks, Chair, House Judiciary Committee (July 22, 1993), reprinted in Crimes of Violence Motivated by-Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. 34-36 (1993). The letter states that "the current system for dealing with violence against women is inadequate." Id. at 35.
188. United States v. Morrison, 120 S. Ct. 1740, 1779 (2000) (Breyer, J., dissenting).
189. Id. at 1758. The Court continued: "In the present cases, for example, § 13981 visits no consequence whatever on any Virginia public official involved in investigating or prosecuting Brzonkala's assault. The section is, therefore, unlike any of the § 5 remedies we have previously upheld." Id. 196. United States v. Price, 383 U.S. 787 (1966); United States v. Guest, 383 U.S. 745 (1966).
190. Assuming, of course, the presence of a constitutional violation. Justice Jackson, in an opinion implicitly cited by Morrison, see infra note 201, specifically reserves this question: "We do not say that no conspiracy by private individuals could be of such magnitude and effect as to work a deprivation of equal protection of the laws . . . . Indeed, the post-Civil War Ku Klux Klan may have, or may reasonably be thought to have, done so." Collins v. Hardyman, 341 U.S. 651, 662 (1951). Later, in Griffin v. Breckenridge, 403 U.S. 88, 97 (1971), the Court became much more explicit about this question: "A century of Fourteenth Amendment adjudication has . . . made it understandably difficult to conceive of what might constitute a deprivation of equal protection of the laws by private persons. Yet there is nothing inherent in the phrase that requires the action working the deprivation to come from the State."
191. Brief for the United States at 44, United States v. Morrison, 120 S. Ct. 1740 (2000) (Nos. 99-5, 99-29), 1999 WL 1037259. The Solicitor General continued: "Congress could decline to make proof of state discrimination an element of Section 13981's cause of action. Indeed, such proof would have made the federal remedy much more costly and cumbersome for plaintiffs and much more intrusive into state functions." Id. at 44 n.25.
192. As Justice Breyer notes in dissent: But why can Congress not provide a remedy against private actors? Those private actors, of course, did not themselves violate the Constitution. But this Court has held that Congress at least sometimes can enact remedial "legislation . . . [that] prohibits conduct which is not itself unconstitutional." . . . The statutory remedy . . . . intrudes little upon either States or private parties. It may lead state actors to improve their own remedial systems, primarily through example. It restricts private actors only by imposing liability for private conduct that is, in the main, already forbidden by state law. Why is the remedy "disproportionate"? And given the relation between remedy and violation - the creation of a federal remedy to substitute for constitutionally inadequate state remedies - where is the lack of "congruence"? Morrison, 120 S. Ct. at 1779 (Breyer, J., dissenting).
193. Id. at 1755. The Court then cites Boerne for the point that "the Amendment 'does not concentrate power in the general government for any purpose of police government with the States.'" Id. at 1755-56.
194. In a startling passage, the Court states: The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur - and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment. Id. at 1756. The passage evokes Justice Jackson's earlier more cautious and politically explicit praise of Harris and the Civil Rights Cases as decisions made "by a Court, every member of which had been appointed by President Lincoln, Grant, Hayes, Garfield or Arthur-all indoctrinated in the cause which produced the Fourteenth Amendment, but convinced that it was not to be used to centralize power so as to upset the federal system." Collins, 341 U.S. at 657-58. Collins was sharply limited, if not overruled, in Griffin, 403 U.S. at 93-96.
195. The Civil Rights Cases, 109 U.S. 3, 13-14 (1883).
196. Id. at 13.
197. Morrison, 120 S. Ct. at 1754.
198. Supra text accompanying notes 38-39.
199. United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring). One can therefore expect the distinct emphases and functions of Section 5 to intersect with the values of federalism in ways that are different from those of the Commerce Clause. It is not determinative of the federalism question for Sections that § 13981 touches upon what, for purposes of the Commerce Clause, the Court may choose to regard as "areas of traditional state regulation" like "family law" or "intrastate violence." Morrison, 120 S. Ct. at 1753-54. Even if the Court concludes that these areas are peripheral to the regulation of commerce, that tells us nothing about their significance in the struggle against discrimination.
200. Civil Rights Cases, 109 U.S. at 11.
201. Morrison, 120 S. Ct. at 1755.
202. For a good recent discussion of the values at stake in articulating such an image, see Barry Friedman, Valuing Federalism. 82 MINN. L. REV. 317 (1997). 210 United States v. E.C. Knight Co., 156 U.S. 1, 16 (1895); see also id. at 13 ("It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the autonomy of the States as required by our dual form of government."); Kidd v. Pearson, 128 U.S. 1, 20 (1888) ("No distinction is more popular to the common mind, or more clearly expressed in economic and political literature,
203. Carter v. Carter Coal Co., 298 U.S. 238, 308 (1936); see also id. at 309 ("[I]f the commerce clause could be construed to reach transactions having an indirect effect upon interstate commerce the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government." (citing Schechter Poultry Corp. v. United States, 295 U.S. 495, 546 (1935))).
204. 317 U.S. 111 (1942).
205. 312 U.S. 100 (1941).
206. 301 U.S. 1 (1937).
207. 379 U.S. 241 (1964).
208. United States v. Morrison, 120 S. Ct. 1740, 1753 (2000).
209. United States v. Lopez, 514 U.S. 549, 601 n.8 (1995) (Thomas, J., concurring) ("Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean." (emphasis added)).
210. 379 U.S. 294 (1964).
211. MORTON GRODZINS, THE AMERICAN SYSTEM: A NEW VIEW OF GOVERNMENT IN THE UNITED STATES 8 (Daniel J. Elazar ed., 1966) ("No important activity of government m the United States is the exclusive province of one of the levels, . . . not even the most loca of local functions such as police and park maintenance."); Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 1006 (2000) ("A binary assumption, that an issue is either 'state' or 'federal,' misses the rich complexity of governance in which shared and overlapping work is commonplace."); Edward L. Rubin & Malcolm Fee ley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 933 (1994). Even the Gun-Free School Zones Act of 1990, which was struck down in Lopez as an example of a federal law seeking to regulate the "truly local," was easily rehabilitated by the simple and effective expedient of inserting a jurisdictional element "that will virtually always be present." Meltzer, supra note 43, at 1049 & n.159.
212. For an account of some of the many ways federal law regulates family life, see Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297, 1373-85 (1998), which discusses court cases applying equal protection and privacy doctrines to the family as well as federal legislation in the areas of tax, immigration, child support, adoption, social security, and welfare law, along with recent statutes such as the Defense of Marriage Act.
213. See Kramer, Political Safeguards, supra note 210, at 227.
214. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41-42 (1937) (describing a change funded by "actual experience").
215. United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring). 224 See ez Romer v. Evans, 517 U.S. 620, 623 (1996) ("One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens.' Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion). Unheeded then those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake."); Planned Parenthood v. Casey, 505 U.S. 833, 863 (1992) (plurality opinion) ("[W]e think Plessy was wrong the day it was decided, Plessy, supra, at 552-562 (Harlan, J., dissenting) . . . ."); City of Richmond v. J.A. Croson Co., 488 U.S. 469 52 (1989) Scaha, J., concurring in the judgment) ("[O]nly a social emergency rising to the level of imminent danger to life and limb . . . can justify an exception to the principle embodied in the Fourteenth Amendment that '[o]ur Constitution is colorblind, and neither knows .,or tolerates classes among citizens,' Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan J., dissenting).").
216. The Civil Rights Cases, 109 U.S. 3, 54 (1883) (Harlan, J., dissenting) ("It was perfectly well known that the great danger to the equal employment by citizens of their rights as citizens was to be apprehended not altogether from unfriendly State legislation, but from the hostile action of corporations and individuals in the States. And it is to be presumed that it was intended by [Section 5], to clothe Congress with power and authority to meet that danger"). For a fuller discussion of Justice Harlan's dissenting opinion in the Civil Rights Cases, see infra note 237.
217. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
218. E.g., Schiro v. Bynum, 375 U.S. 395 (1964) (per curiam) (city auditorium), off'g 219 F. Supp. 204 (E.D. La. 1963); Johnson v. Virginia, 373 U.S. 61 (1963) (per cunam) (public facilities); Turner v. City of Memphis, 369 U.S. 350 (1962) (per curiam) (restaurant); State Athletic Comm'n v. Dorsey, 359 U.S. 533 (1959) (per curiam) (sporting events), aff'g 168 F. Supp 149 (E.D. La. 1958); New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958) (per curiam) (public parks), off'g 252 F.2d 122 (5th Cir.); Pennsylvania v. Bd. of Dirs., 353 U.S. 230 (1957) (per curiam) (school); Gayle v. Browder, 352 U.S. 903 (1956) (per cunam) (buses), aff'g 142 F. Supp. 707 (M.D. Ala.); Florida ex rel. Hawkins v. Bd. of Control, 350 U.S. 413 (1956) (per curiam) (graduate professional program); Holmes v. City of Atlanta, 350 U.S. 879 (per curiam) (public golf course), rev'g 223 F.2d 93 (5th Cir. 1955); Mayor of Baltimore City v. Dawson 350 U.S. 877 (1955) (per curiam) (public beaches), aff'g 220 F.2d 386 (4th Cir.); Muir v. Louisville Park Theatrical Assoc., 347 U.S. 971 (1954) (per curiam) (privately run opera performance), rev'g 202 F.2d 275 (6th Cir. 1953).
219. Numerous cases ended up before the Supreme Court. See, e.g., Hamm v. City of Rock Hill 379 U.S. 306 (1964) (5-4 decision) (reversing convictions arising out of sit-ins because the passage of the Civil Rights Act of 1964 while the appeal was pending abated the prosecutions); Bouie v. City of Columbia, 378 U.S. 347 (1964) (invalidating on vagueness grounds the convictions of sit-in demonstrators for refusing to leave premises after being asked to do so); Bell v. Maryland 378 U.S. 226 (1964) (vacating and remanding sit-in convictions to be reconsidered in the light of the intervening enactment of state and local public accommodations laws); Robinson v. Florida, 378 U.S. 153 (1964) (reversing sit-in convictions on the grounds that a state regulation mandating racially separate washroom facilities for restaurant employees and customers constituted state action); Barr v. City of Columbia, 378 U.S. 146 (1964) (per curiam) (reversing convictions arising out of a sit-in for lack of evidence); Griffin v. Maryland, 378 U.S. 130 (1964) (reversing trespass convictions on the grounds that the arrest by a park employee who had been deputized as sheriff constituted state action); Henry v. City of Rock Hill, 376 U.S. 776 (1964) (per curiam) (reversing the convictions arising out of a peaceful assembly on Fourteenth Amendment grounds); Dresner v. City of Tallahassee, 375 U.S. 136 (1963) (certifying to the Florida Supreme Court a number of state-law questions arising out of convictions in a "Freedom Ride" case); Fields v. South Carolina, 375 U.S. 44 (1963) (summarily reversing breach-ot-peace convictions); Wright v. Georgia, 373 U.S. 284 (1963) (reversing breach-of-peace convictions of blacks for playing basketball in a public park on grounds of inadequate warning under the Due Process Clause); Peterson v. City of Greenville, 373 U.S. 244 (1963) (per cunam) (reversing convictions arising out of a sit-in because a local ordinance required segregation in restaurants): Johnson v Virginia, 373 U.S. 61 (1963) (per curiam) (reversing a contempt conviction for refusing to leave a white-only area of the courtroom on equal protection grounds); Edwards v. South Carolina, 372 U.S. 229 (1963) (reversing convictions arising out of a public protest on First Amendment grounds); Taylor v. Louisiana, 370 U.S. 154 (1962) (per curiam) (reversing convictions arising out of a sit-in at a bus terminal for lack of evidence); Garner v. Louisiana, 368 U.S. 157 (1961) (reversing disturbing-the-peace convictions of sit-in demonstrators on the due process ground of total absence of evidence).
220. See generally JACK GREENBERG, CRUSADERS IN THE COURTS: HOW A DEDICATED BAND OF LAWYERS FOUGHT FOR THE CIVIL RIGHTS REVOLUTION 306-17 (1994) (describing sit-in cases litigated by the NAACP Legal Defense Fund in the Supreme Court); MORTON J. HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE 38-48 (1998) (describing the civil disobedience decisions of the Supreme Court between 1964 and 1967); LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 227-29 (2000) (describing sit-in cases of 1963 and 1964).
221. Jack Greenberg reports that in 1964 there were several thousand sit-in cases in the federal courts. GREENBERG, supra note 229, at 316-17 (discussing the argument of Hamm, 379 U.S. 306). For one account of the ways that civil disobedience protests shaped the civil rights agenda of the Kennedy Administration, see HARRIS WOFFORD, OF KENNEDYS AND KINGS: MAKING SENSE OF THE SIXTIES 103-77 (1980). See also PHILIP A. KLINKNER WITH ROGERS M. SMITH, THE UNSTEADY MARCH: THE RISE AND DECLINE OF RACIAL EQUALITY IN AMERICA 264-75 (1999) (describing how the initiative to enact a civil rights bill arose out of symbolic politics of the Cold War and escalating pressures created by civil disobedience protests, culminating in the bombing of a black church in Birmingham); Norbert A. Schlei, Foreword to BARBARA LINDEMANN SCHLEI &PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW, at vu, viii-ix (1976) (describing how the Birmingham demonstrations and sit-ins in May and June of 1963 prodded the Kennedy Administration into proposing a civil rights bill). Norbert Schlei was an Assistant Attorney General and was in charge of drafting the Administration's bill.
222. Prior to 1960, there were, of course, civil rights and race equality claims sporadically asserted in the labor context. Historians are still uncovering the roots of modern civil rights tradition in the New Deal era. See, e.g., William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 80 (1999) (presenting a vision of a "labor-based civil rights movement" that never realized its potential during or after the New Deal). For a new and provocative account of the federal government's early efforts to protect civil rights in market relationships in the wake of the New Deal, see Risa L. Goluboff, A Road Not Taken: The Thirteenth Amendment and the Lost Origins of Civil Rights, 50 DUKE L.J. (forthcoming Apr. 2001), which discusses the legal practice and constitutional interpretations of the Civil Rights Section of the Department of Justice between 1939 and 1954.
223. Wickard v. Filburn, 317 U.S. 111 (1942).
224. The classic Statement of this doctrine is Lord Chief Justice Holt's dissent in Lane v. Cotton: If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him . . . . If an innkeeper refuse to entertain a guest where his house is not full, an action will lie against him, and so against a carrier, if his horses be not loaded, and he refuse to take a packet proper to be sent by a carrier . . . . 88 Eng. Rep. 1458, 1464-65 (K.B. 1701) (Holt, C.J., dissenting) (citation omitted).
225. Siegel, supra note 143, at 1121-28 (illustrating how, over time, the concept of associational privacy was employed to justify state-enforced segregation of marriage, education, transportation, and accommodations); Joseph William Singer, No Right To Exclude: Public Accommodations and Private Property, 90 Nw. U. L. REV. 1283 (1996) (tracing the expansion of the common-law duty to serve in the period before the Civil War and demonstrating how American common-law courts came to celebrate the right of private property owners to discriminate in the use of their property in the decades after the Civil War).
226. For sources discussing the ways that white Americans invoked distinctions among civil, political, and social rights in reasoning about the rights of African Americans during the nineteenth century, see Siegel, supra note 143, at 1120 n.28. See also id. at 1123-28 (tracing discourse in debates over the Civil Rights Act of 1875, cases applying the Civil Rights Act of 1875. the Supreme Court decision invalidating the Civil Rights Act of 1875, and the decision in Plessy v. Ferguson upholding a statute mandating segregation of public accommodations under the Fourteenth Amendment). For an account that analyzes the efforts of African Americans to make emancipatory demands within this discursive framework, see CELESTE MICHELLE CONDIT & JOHN LOUIS LUCAITES, GRAFTING EQUALITY: AMERICA'S ANGLO-AFRICAN WORD 94-110 (1993).
227. The Civil Rights Cases, 109 U.S. 3, 24-25 (1883).
228. In the Civil Rights Cases, the Court held that Congress lacked power under the Thirteenth and Fourteenth Amendments to enact the Civil Rights Act of 1875 which prohibited discrimination in public accommodations. The role played by race in the Court's judgment about the limits of federal power is most apparent in the Court's interpretation of the Thirteenth Amendment The Court held that although the Thirteenth Amendment gave Congress direct and plenary authority to enforce the prohibition on slavery, id. at 18, 23, the federal government could enact only legislation that protected the civil rights of the freedmen, not their "social rights," id. at 22. In the Court's view, the 1875 Act's prohibition of race discrimination in transportation and accommodations had "nothing to do with slavery or involuntary servitude." Id. at 24; see also id. at 25 ("There were thousands of free colored people in this country before the abolition o slavery enjoying all the essential rights of life, liberty and property the same as white citizens; yet no one at that time, thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery") Thus, although the Court conceded that Congress's power under Section 2 of the Thirteenth Amendment was direct and plenary, it used the distinction between civil and social rights to confine federal power under the Thirteenth Amendment in the interests of preserving a sphere of "private" association in which racial discrimination could be freely practiced. The same dynamic is perceptible in the Court's treatment of the claim that the 1875 Act could be sustained as an exercise of Congress's power under Section 5 of the Fourteenth Amendment. Having held in the Slaughter-House Cases that the primary purpose of the Fourteenth Amendment was to redress "the grievances" of "the slave race" 83 U.S. (16 Wall.) 36, 71-72 (1872) the Court in the Civil Rights Cases proceeded to hold that Congress lacked direct and plenary power to enforce the Fourteenth Amendment and could only exercise Section 5 power when it was seeking to remedy state action that violated the Amendment. Thus, although Section 5 would appear on its face to cede to Congress expansive power to redress racial discrimination, the Court in the Civil Rights Cases restrictively interpreted that power by emphasizing the state action language in Section 1. It is not clear from the Court's opinion in the Civil Rights Cases what forms of race-based state action would violate Section 1, cf. Pace v. Alabama, 106 U.S. 583 (1882) (upholding, under the Fourteenth Amendment a state law punishing interracial cohabitation, fornication, adultery, or marriage), or how the distinction between civil and social rights would bear on this question, cf. Siegel, supra note 143, at 1123-27 (demonstrating that "distinctions between civil and social rights were not fixed, but instead were forged in the struggle over the scope of Reconstruction legislation"). Thirteen years later, of course, the Court in Plessy would use the distinction between civil and social rights sharply to limit the reach of Section 1. See infra note 238. To appreciate fully the role that racial assumptions play in shaping the Court's reasoning in the Civil Rights Cases, it is helpful to compare Justice Bradley's reasoning with Justice Marian's dissenting opinion in the case. While Bradley assumes that racial discrimination will remain a normal and largely unobjectionable feature of social life in the United States, Harlan reasons that because the institution of slavery "rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races." Civil Rights Cases, 109 U.S. at 36 (Harlan, J., dissenting). Arguing that access to public accommodations is a civil right protected by the common law, Harlan concludes that Congress has the power under the Thirteenth Amendment to enact the provisions of the 1875 Act that prohibit race discrimination in public accommodations. Harlan also defends the 1875 Act as a proper exercise of Congress's power to enforce the Fourteenth Amendment. In Justice Harlan's view, Section 5 vests Congress with direct and primary authority to enforce the provisions of Section 1, including its first sentence, which reverses the Dred Scott decision, Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), and makes all persons born or naturalized in the United States citizens of the United States.
229. Plessy v. Ferguson, 163 U.S. 537 (1896). Plessy repeatedly invokes the distinction between civil and social rights in the course of explaining why laws mandating segregation are permissible under the Equal Protection Clause of the Fourteenth Amendment. See id. at 544 ("The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either."); id. at 551-52 ("If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals. . . . If the civil and political rights of both races be equal one cannot be interior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."). In holding that such segregation is constitutional under the Thirteenth Amendment, Plessy essentially recapitulates the argument of the Civil Rights Cases. Id. at 543 (" 'It would be running the slavery argument into the ground,' said Mr. Justice Bradley, 'to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will . . . deal with in other matters of intercourse or business.'" (quoting Civil Rights Cases, 109 U.S. at 24-25)).
230. Bell v. Maryland, 378 U.S. 226, 284-85 (1964) (Douglas, J., concurring in part) (listing, in an appendix prepared by the United States Commission on Civil Rights, state antidiscrimination laws as of 1964).
231. POWE, supra note 229, at 233; see also id. at 232 (reporting that "the Civil Rights Act passed the House of Representatives by the overwhelming bipartisan margin of 290-130. 104 of the dissenters being southern Democrats, who fully understood that this bill was aimed directly at the white South").
232. These objections were the mainstay of opposition to the enactment of the Civil Rights Act of 1964 in Congress. E.g., 2 STATUTORY HISTORY OF THE UNITED STATES 1304 (Bernard Schwartz ed., 1970) (excerpting the congressional floor debates over the Civil Rights Act of 1964) (statement of Sen. Tower) ("[W]hat is left of individual liberty if a man or a woman cannot choose associates in work or in play on the basis of either reason or prejudice, which are often indistinguishable?"); id. at 1121 (statement of Rep. Willis) ("In the teeth of previous rulings of the courts to the contrary, title II undertakes to order that from here on the 14th amendment shall mean that the private owner of a place of business, such as a restaurant and many others, cannot choose his customers."); id. at 1129 (statement of Rep. Abernethy) ("An owner of property should not be compelled to serve or entertain or otherwise accommodate anybody that he, the owner, does not want to accommodate.").
233. E.g., Robert Bork, Civil Rights - A Challenge, NEW REPUBLIC, Aug. 31, 1963, at 21, 24 (arguing that just as with "McCarthyism," "the issue was not whether communism was good or evil but whether men ought to be free to think and talk as they pleased," so too "[i]t is not whether racial prejudice or preference is a good thing but whether individual men ought to be free to deal and associate with whom they please for whatever reasons appeal to them"); see also id. at 22 ("There seems to be a strong disposition on the part of proponents of the legislation simply to ignore the fact that it means a loss in a vital area of personal liberty. . . . The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.").
234. E.g., 110 CONG. REC. 9184 (1964) (statement of Sen. Thurmond) (stating that "FBI Director J. Edgar Hoover has confirmed . . . that 'Communist influence does exist in the Negro movement,'" and demanding that Congress inquire into "these subversive influences which have promoted racial strife and turmoil and which have been responsible in a large measure for promoting and inspiring the pending so-called civil rights legislation"); 2 STATUTORY HISTORY OF THE UNITED STATES, supra note 241, at 1421 (statement of Rep. Smith) ("Already the second invasion of carpetbaggers of the Southland has begun. Hordes of beatniks, misfits, and agitators from the North, with the admitted aid of the Communists, are streaming into the Southland on mischief bent, backed and defended by other hordes of Federal marshals, Federal agents, and Federal power.").
235. E.g., 110 CONG. REC. 9030 (1964) (colloquy between Sens. Talmadge and Tower) (Sen. Talmadge observing that "so long as we have discrimination, we shall have freedom. When we cease to have discrimination, we shall have an ant-hill society, in which the Government will call the shots," and Sen. Tower responding, "I think we will have about arrived at '1984' when that occurs"); 2 STATUTORY HISTORY OF THE UNITED STATES, supra note 241, at 1293 (statement of Sen. Ervin) ("I will agree that if this bill were passed, that the America I have known and loved, the America that believes in liberty rather than Government by regimentation, would be supplanted by a police state."); id. at 1401 (statement of Sen. Goldwater) ("To give genuine effect to the prohibitions of this bill will require the creation of a Federal police force of mammoth proportions. It also bids fair to result in the development of an 'informer' psychology in great areas of our national life - neighbors spying on neighbors, workers spying on workers, business spying on businessmen . . . . These, the Federal police force and an 'informer' psychology, are the hallmarks of the police state and landmarks of the destruction of a free society.).
236. E.g., 2 STATUTORY HISTORY OF THE UNITED STATES, supra note 241, at 1299 (statement of Sen. Tower) ("If Federal Government is to inject itself to this extent into the operation of the nation's industry, it may well find itself in complete charge under a Socialist state.").
237. See Alfred Avins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 CORNELL L.Q. 228 (1964) (arguing that state legislation requiring nondiscrimination in public accommodations and various personal service occupations violates the Thirteenth Amendment by forcing one person to serve another), cited in 110 CONG. REC. 8633 (1964). Title II of the Civil Rights Act of 1964 was in fact challenged as an "involuntary servitude" in violation of the Thirteenth Amendment, a challenge summarily dismissed by the Court. Heart of Atlanta Motel v. United States, 379 U.S. 241, 261 (1964). But see Browning v. Slenderella Sys., 341 P.2d 859, 869 (Wash. 1959) (Mallery, J., dissenting) ("The right to exclusiveness, like the right to privacy, is essential to freedom. . . . When a white woman is compelled against her will to give a Negress a Swedish massage, that . . . is involuntary servitude.").
238. MILTON FRIEDMAN, CAPITALISM AND FREEDOM 113 (1982 ed.) (originally published in 1962) ("The Hitler Nuremberg laws . . . [are] similar in principle to [Title VII]."); 2 STATUTORY HISTORY OF THE UNITED STATES, supra note 241, at 1165-66 (colloquy between Sens. Sparkman and Talmadge) (arguing that the Civil Rights Act would empower another Mussolini or Hitler); id. at 1302 (colloquy between Sens. Hill and Tower) (same).
239. E.g., 2 STATUTORY HISTORY OF THE UNITED STATES, supra note 241, at 1132 (statement of Rep. Abernethy) ("If a department store manager wants to hire blond sales clerks, he can hire all blond sales clerks. His wife might object but the Federal Government cannot. Title VII would change all this . . . . The most remote corner of our social structure and virtually all of our economic structure would be reached, cajoled, and controlled by this incredible proposal."); id. at 1274-75 (statement of Sen. Long) ("[I]t is desirable for the colored, as well as the white, to associate with their own kind, and to have their social relationships among their own kind. [I] believe[] that is the opinion of the overwhelming majority of the white, as well as the colored-reserving the right of anyone who wants to mix to do so.); id. at 1304 (statement of Sen. Tower) ("Where was the Congress ever given the power to declare it to be a wrong for an American to dislike to associate with persons of nations or races which have recently made war on America and treacherously killed or cruelly tortured the sons, brothers, or fathers of living Americans?"). Today such objections to federal enforcement of antidiscrimination norms in market transactions are rarely voiced by officials in public settings. But discourses of the racial private sphere once used to oppose laws enforcing antidiscrimination norms in business transactions have now taken on new life in debates over affirmative action. See Reva B. Siegel, The Racial Rhetorics of Colorblind Constitutionalism: The Case of Hopwood v. Texas, in RACE AND REPRESENTATION: AFFIRMATIVE ACTION 29, 52-61 (Robert Post & Michael Rogin eds., 1998) (tracing the evolution of racial privacy discourse in the period after the enactment of the Civil Rights Act of 1964 from the claim that civil rights law should respect associational freedom to a claim that civil rights law should respect the market allocations individuals and groups secure through meritocratic competition, and illustrating how courts and commentators invoked mis new discourse of the racial private sphere as a basis for restricting affirmative action).
240. There were, in fact, congressional proponents of each view, and extended debates about the kinds of transactions Congress might reach by exercise of each source of power. For a good summary of the debates, see MORGAN, supra note 22, at 292-330; see also Heart of Atlanta,
241. U.S. at 286-91 (Douglas, J., concurring) (discussing, in an appendix, the Fourteenth Amendment basis of the enacted public accommodations title).
242. The Act applies to a public accommodation "if its operations affect commerce, or if discrimination or segregation by it is supported by State action." 42 U.S.C. § 2000a(b) (1994); see also supra note 22.
243. Heart of Atlanta, 379 U.S. at 250 ("[W]e have therefore not considered the other grounds relied upon. This is not to say that the remaining authority upon which [Congress] acted was not adequate, a question upon which we do not pass, but merely that since the commerce power is sufficient for our decision here we have considered it alone."); see also supra note 23. 252. The Civil Rights Cases, 109 U.S. 3, 25 (1883).
244. Underlying the holding was a concept of federalism designed to uphold the freedom to discriminate in "social" matters. For a full discussion of this point, see supra note 237. The Court continued for many decades to invoke this same understanding of federalism to read the Thirteenth Amendment very narrowly. E.g., Hodges v. United States, 203 U.S. 1, 18 (1906); cf. Corrigan v. Buckley, 271 U.S. 323, 330-31 (1926).
245. 392 U.S. 409 (1968).
246. Id. at 440-41. In Jones, the Court construed section 1 of the Civil Rights Act of 1866, now codified at 42 U.S.C. § 1982 (1994), to reach discrimination in real property transactions by private actors, holding also that Congress had the power under Section 2 of the Thirteenth Amendment to enact § 1982. The Court observed: [T]he fact that § 1982 operates upon the unofficial acts of private individuals, whether or not sanctioned by state law, presents no constitutional problem. If Congress has power under the Thirteenth Amendment to eradicate conditions that prevent Negroes from buying and renting property because of their race or color, then no federal statute calculated to achieve that objective can be thought to exceed the constitutional power of Congress simply because it reaches beyond state action to regulate the conduct of private individuals. Jones, 392 U.S. at 438-39. For a discussion, see Note, Jones v. Mayer: The Thirteenth Amendment and the Federal Anti-Discrimination Laws, 69 COLUM. L. REV. 1019 (1969). The Court later construed another Reconstruction statute derived from section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1994), to prohibit private schools from discriminating on the basis of race. Runyon v. McCrary, 427 U.S. 160 (1976). In the ensuing years, federal courts developed a body of doctrine that integrated cases decided under these revived nineteenth-century statutes with cases arising under the Civil Rights Act of 1964 and the Civil Rights Act of 1968. Note, Federal Power To Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments, 74 COLUM. L. REV. 449, 466-505 (1974).
247. Jones. 392 U.S. at 440.
248. The Thirteenth Amendment provides: Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. U.S. CONST, amend. XIII.
249. 403 U.S. 217 (1971).
250. Id. at 226-27 (emphasis added).
251. See Laycock, supra note 84, at 755; Sager, Justice in Plain Clothes, supra note 137, at 433; cf. City of Memphis v. Greene, 451 U.S. 100, 125 (1981).
252. United States v. Guest, 383 U.S. 745, 782 (1966) (Brennan, J., concurring in part and dissenting in part) ("A majority of the members of the Court expresses the view today that § 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy."); see also District of Columbia v. Carter, 409 U.S. 418, 424 n.8 (1973) (dictum).
253. Guest, 383 U.S. at 755; see also Griffin v. Breckenridge, 403 U.S. 88, 107 (1971) ("[T]he allegations of the complaint in this case have not required consideration of the scope of the power of Congress under § 5 of the Fourteenth Amendment.").
254. See, e.g., sources cited in note 266 infra. Even in Heart of Atlanta, the concurring opinions of Justices Douglas and Goldberg, which argued that the 1964 Act ought to be upheld as an exercise of Section 5 power, both assumed that a judicially enforceable violation of Section 1 was a necessary predicate to the exercise of Section 5 power. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 280 (1964) (Douglas, J., concurring); id. at 376-77 (Goldberg, J., concurring). Both Justices Douglas and Goldberg were willing to extend the state action requirement of Section 1 to reach "discriminatory treatment (based on race) in places of public accommodation" by private parties. Id. at 280 (Douglas, J., concurring).
255. See Michael Klarman, An Interpretive History of Modern Equal Protection. 90 MICH. L. REV. 213, 276 (1991) ("[A] brief survey of the period's constitutional commentary . . . reveals that the dominant trend in legal academic thought espoused abolition of the state action requirement."). The pressure to liberalize the state action requirement in equal protection cases is a central theme of the Har\'ard Law Review's Supreme Court Forewords authored by Archibald Cox in 1966 and Charles Black in 1967. See Cox, supra note 160; Charles L. Black, Jr., The Supreme Court, 1966 Term-Foreword: "Slate Action," Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69 (1967); see also John Silard, A Constitutional Forecast: Demise of the "State Action" Limit on the Equal Protection Guarantee, 66 COLUM. L. REV. 855 (1966).
256. See Michael Klarman, An Interpretive History of Modern Equal Protection. 90 MICH. L. REV. 213, 276 (1991) ("[A] brief survey of the period's constitutional commentary . . . reveals that the dominant trend in legal academic thought espoused abolition of the state action requirement."). The pressure to liberalize the state action requirement in equal protection cases is a central theme of the Har\'ard Law Review's Supreme Court Forewords authored by Archibald Cox in 1966 and Charles Black in 1967. See Cox, supra note 160; Charles L. Black, Jr., The Supreme Court, 1966 Term-Foreword: "Slate Action," Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69 (1967); see also John Silard, A Constitutional Forecast: Demise of the "State Action" Limit on the Equal Protection Guarantee, 66 COLUM. L. REV. 855 (1966).
257. See Michael Klarman, An Interpretive History of Modern Equal Protection. 90 MICH. L. REV. 213, 276 (1991) ("[A] brief survey of the period's constitutional commentary . . . reveals that the dominant trend in legal academic thought espoused abolition of the state action requirement."). The pressure to liberalize the state action requirement in equal protection cases is a central theme of the Har\'ard Law Review's Supreme Court Forewords authored by Archibald Cox in 1966 and Charles Black in 1967. See Cox, supra note 160; Charles L. Black, Jr., The Supreme Court, 1966 Term-Foreword: "Slate Action," Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69 (1967); see also John Silard, A Constitutional Forecast: Demise of the "State Action" Limit on the Equal Protection Guarantee, 66 COLUM. L. REV. 855 (1966).
258. 365 U.S. 715 (1961).
259. At this time Supreme Court case law could be read as supporting a claim of state action in many racially discriminatory situations not involving formal action or authorization by the state. See MORGAN, supra note 22, at 297 (noting that in the early 1960s, "one might plausibly construe the amendment as encompassing state enforcement of discrimination based solely on custom or usage and lacking any prior state authorization"). The uncertainty surrounding the state action requirement was so great that Republican congressmen advocating a Fourteenth Amendment basis for the Civil Rights Act of 1964 repeatedly pointed to state action precedents suggesting that discrimination in public accommodations licensed by the state was actionable under the Fourteenth Amendment. E.g., Civil Rights: Hearings Before the Subcomm. No. 5 of the House Comm. on the Judiciary, 88th Cong. 1388 (1963) (questioning of Rep. McCulloch); id. at 1395 (statement of Rep. Lindsay) ("The 14th amendment approach in effect would cover a public facility which is privately owned and which is authorized to do business by the State."); id. at 1601 (statement of Rep. Lindsay) (stating, in response to the question "[D]o you take the position then that if there is a license or permit issued by the State or a subdivision of the State that any action that might be taken will come under the prohibition of the 14th amendment?" that "I would like to argue that case in the Supreme Court, and I think I would win it today").
260. Observers of the Court well appreciated that the sit-in cases put increasing pressure on state action limitations restricting judicial enforcement of Section 1. E.g., Thomas P. Lewis, The Sit-in Cases: Great Expectations, 1963 SUP. CT. REV. 101, 101 ("In the Sit-in Cases decided last Term the Supreme Court inched closer to a confrontation with perhaps the most interesting, most discussed-perhaps the most crucial-issue since the decision of the School Segregation Cases. In some respects the resolution of this issue, whether the Fourteenth Amendment provides the Negro with a self-executing federal right to equal treatment by the proprietors of private establishments catering to all the public except Negroes, may have more far-reaching implications and greater consequences than even the School Segregation Cases." (footnotes omitted)). The Court's deliberations in Bell v. Maryland, 378 U.S. 226 (1964), which occurred during congressional debates over the 1964 Act, show four- and possibly five-Justices ready to reverse the restaurant sit-in convictions on Fourteenth Amendment grounds. Compare POWE, supra note 229, at 227-29 (reporting that Chief Justice Warren, and Justices Brennan, Douglas, and Goldberg were ready to reverse the convictions on Fourteenth Amendment grounds), with Klarman, supra note 264, at 273-77 (reporting that after a long delay in the Court's internal deliberations in the case, Justice Clark circulated a draft opinion that would have found state action, but subsequent state law developments enabled Justice Brennan to build a majority for reversing the convictions on retroactive abatement grounds). Apparently concerned that an adverse decision in the case might be viewed by some to undercut chances for the Act's passage, the Court delayed deciding the case, and then finally reversed the sit-in convictions on state-law grounds just three days after the Senate passed the Act, and ten days before it became law. HORWITZ, supra note 229, at 39-41; POWE, supra note 229, at 229.
261. 378 U.S. 2262E
262. 384 U.S. 641, 648-49 (1966) (holding that under Section 5 of the Fourteenth Amendment, Congress can enact legislation prohibiting enforcement of a state law, even if courts have not determined that the state law violates the provisions of the Amendment) ("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. It would confine the legislative power in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the 'majestic generalities' of § 1 of the Amendment.") (citations to historical accounts of the Fourteenth Amendment invoked in support of the Court's interpretation of Congress's Section 5 powers omitted).
263. Communication from Hugo Black, Justice, U.S. Supreme Court, to William Brennan, Justice, U.S. Supreme Court (May 23, 1966).
264. Supra text accompanying notes 257-260.
265. Certainly Archibald Cox, who as Solicitor General had previously believed that it was impractical to defend the constitutionality of the Civil Rights Act of 1964 on Fourteenth Amendment, as distinct from Commerce Clause, grounds, read the Morgan and Guest cases in his Supreme Court Foreword of 1966 as attributing to Congress a special institutional competence and authority to address the state action requirement of the Fourteenth Amendment. He interpreted the cases as signaling that the Court had begun to exercise judicial review of Section 5 power in deferential terms resembling its approach to federalism questions under the Commerce Clause: Here then, as under the commerce clause, in place of the question, what will the Court permit, the principal issue becomes, how widely should Congress choose to extend federal regulation. Political opinions upon the wisdom of that transfer of responsibility [to determine federalism limits under the Commerce Clause] differ widely. In my view it gave the federal system as a whole the flexibility to satisfy the material needs of its citizens, without significantly lessening the power of the states to respond. The recent decisions express a parallel view of congressional responsibility in the area of human rights.
266. Cox, supra note 160, at 119. For Cox's view of the 1964 Act, see Seth M. Waxman, Twins at Birth: Civil Rights and the Role of the Solicitor General, 15 IND. L.J. 1297, 1311-13 (2000). For another contemporary interpretation of Morgan, see Burt, supra note 65, at 104, which reads Morgan as "asserting] a new constitutional theory of Court-Congress relationships under the Fourteenth Amendment." 275. The Court may have been concerned about its capacity to confine any decision to relax or waive state action requirements in exercises of Section 5 power to congressional efforts to enforce the Equal Protection Clause. For a discussion of the difficulties that may attend relaxing the state action requirement in the context of other Section 1 rights, see Julian N. EuIe &Jonathan D. Varat, Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse, 45 UCLA L. REV. 1537 (1998). 276. Cf. Cox, supra note 160, at 117-18 (reading Morgan and Guest as encouraging Congress to exercise its authority under Section 5 to regulate racial violence and housing discrimination). Congress invoked its powers under the Fourteenth Amendment as well as the Commerce Clause in enacting the Civil Rights Act of 1968. See S. REP. No. 90-721, at 5 (1967) ("[A] majority of the Justices made it clear that Congress could, under section 5 of the 14th amendment, enact a statute reaching private conduct denying such rights. H.R. 2516 is such a statute and would-as six Justices said was constitutionally possible-cover racially motivated acts of violence which do not involve participation on [sic] connivance of public officials."); H.R. REP. No. 90-473, at 6 ("While the 14th and 15th amendments, of their own force, do not forbid private discrimination in which no trace of 'State action' is involved, they do expressly authorize Congress to enact appropriate legislation to 'enforce' their substantive guarantees. The scope of this congressional power is broad. (South Carolina v. Katzenbach, 383 U.S. 301, 326-327). It surely comprehends legislation punishing private persons, who, for racial reasons, engage in acts or threats of violence that obstruct access on equal terms to the facilities and benefits which a State provides its citizens, and thereby thwart the attainment of the promise of the 14th and 15th amendments. Any doubt on this score was laid to rest by the opinions of Mr. Justice Clark and Mr. Justice Brennan (speaking together for six of the nine Justices), in the Guest case. . . .").
267. Cf. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 137 (1991) (arguing that it was the "escalating political struggle against institutional racism" - in part precipitated by Brown - that "enabl[ed] the Presidency and Congress of the mid-1960's finally to transform the embattled judicial pronunciamentos of the mid-1950's into the Civil Rights Acts of 1964 and 1968 and the Voting Rights Act of 1965," and so retroactively to imbue Brown with the significance of documents "that express the considered judgments of We the People").
268. United States v. Morrison, 120 S. Ct. 1740, 1755 (2000).
269. For an argument against any such per se rule, see Evan H. Caminker. Private Remedies for Public Wrongs Under Section 5, 33 LOY. L.A. L. REV. 1351 (2000).
270. On congressional assenions of power, see supra notes 22, 25, 276. The Court has repeatedly refused to decide the question. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 306 n.12 (1977) ("Their petition for certiorari and brief on the merits did raise a second question: 'Whether Congress has authority under Section 5 of the Fourteenth Amendment to prohibit by Title VII of the Civil Rights Act of 1964 employment practices of an agency of a state government in the absence of proof that the agency purposefully discriminated against applicants on the basis of race.' That issue, however, is not presented by the facts of this case."); Curtis v. Loether 415 U.S. 189, 198 n. 15 (1974) (deciding whether jury trials are required under the fair housing title of the Civil Rights Act of 1968, and stating that "[w]e therefore have no occasion to consider in this case any question of the scope of congressional power to enforce § 2 of the Thirteenth Amendment or § 5 of the Fourteenth Amendment"); Griffin v. Breckenridge, 403 U.S. 88 107 (1971) (discussing the constitutionality of 42 U.S.C. § 1985(3) (1994), which prohibits conspiracies to interfere with civil rights and stating that "the allegations of the complaint in this case have not required consideration of the scope of the power of Congress under § 5 of the Fourteenth Amendment"); United States v. Guest, 383 U.S. 745, 755 (1966) (reviewing an indictment under 18 U.S.C. § 241 (1964), which criminalizes conspiracies against "the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States" and stating that "[s]ince we therefore deal here only with the bare terms of the Equal Protection Clause itself, nothing said in this opinion goes to the question of what kinds of other and broader legislation Congress might constitutionally enact under § 5 of the Fourteenth Amendment"); Heart of Atlanta Motel v. United States, 379 U.S. 241, 250 (1964) (deciding the constitutionality of Title II of the Civil Rights Act of 1964 and stating that " we have therefore not considered the other grounds relied upon. This is not to say that the remaining authority upon which [Congress] acted was not adequate, a question upon which we do not pass, but merely that since the commerce power is sufficient for our decision here we have considered it alone"). Contra Guest, 383 U.S. at 782 (Brennan, J., concurring in part and dissenting in part) ("A majority of the members of the Court expresses the view today that § 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy.").
271. It is surely relevant for this point that Congress itself persisted in justifying these statutes by reference to its power under Section 5. For a discussion of the Civil Rights Act of 1964, see supra note 22. Congress also asserted Section 5 power in enacting the Civil Rights Act of 1968. Supra note 276.
272. For example, in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), the Court held that discrimination on the basis of pregnancy is not discrimination on the basis of sex under Title VII by applying to Title VII the reasoning of a case interpreting the Equal Protection Clause of the Fourteenth Amendment. See id. at 132-40 (applying to Title VII the reasoning of Geduldig v. Aiello, 417 U.S. 484 (1974)). As Justice Rehnquist explained: The concept of "discrimination," of course, was well known at the time of the enactment of Title VII, having been associated with the Fourteenth Amendment for nearly a century, and carrying with it a long history of judicial construction. When Congress makes it unlawful for an employer to "discriminate . . . because of . . . sex . . . ," without further explanation of its meaning, we should not readily infer that it meant something different from what the concept of discrimination has traditionally meant. Id. at 145.
273. City of Rome v. United States, 446 U.S. 156, 179 (1980); see also Fitzpatrick v. Bitzer, 427 U.S. 445(1976).
274. Washington v. Davis, 426 U.S. 229, 239 (1976); see also In re Employment Discrimination Litig. Against Alabama, 198 F.3d 1305, 1319 n.17 (11th Cir. 1999).
275. GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 201-02 (13th ed. 1997) (quoting a letter from Gerald Gunther to the United States Department of Justice).
276. Printz v. United States, 521 U.S. 898, 925 (1997).
277. Indeed, Morrison's insistence that Congress use its Section 5 power to regulate state actors would seem to imply that Congress would have been on stronger constitutional footing if it had undertaken directly to regulate states whose criminal justice systems failed to protect women from assault to the same extent that they protected men. This is a highly counterintuitive outcome from the perspective of safeguarding states from federal regulation.
278. City of Boeme v. Flores, 521 U.S. 507, 523 (1997). For a good statement of the problem, see Jesse H. Choper, Congressional Power To Expand Judicial Definitions of the Substantive Terms of the Civil War Amendments, 61 MINN. L. REV. 299, 303-07 (1982).
279. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 77 (1872).
280. In the words of Justice Brennan: Stirred to action by the wholesale breakdown of protection of civil rights in the South, Congress carried to completion the creation of a comprehensive scheme of remedies-civil, criminal, and military - for the protection of constitutional rights from all major interference. The history of this scheme of remedies for the protection of civil rights was, until very recently, one of virtual nullification by this Court. Key provisions were declared unconstitutional or given an unduly narrow construction wholly out of keeping with their purposes. Adickes v. S.H. Kress Co., 398 U.S. 144. 205-06 (1970) (Brennan, J., concurring in part and dissenting in part) (footnotes omitted). Legal historians are divided in their assessment of this tumultuous period of constitutional development and the Court's performance in it. For one recent overview of the literature, see Michael Les Benedict, Constitutional History and Constitutional Theory: Reflections on Ackerman, Reconstruction, and the Transformation of the American Constitution, 108 YALE L.J. 201, 2028-35 (1999); and compare BRANDWEIN, supra note 237, which traces the connections between historiography and jurisprudence in debates over the Fourteenth Amendment.
281. United States v. Morrison, 120 S. Ct. 1740, 1754 (2000).
282. Supra text accompanying notes 38-39, 204-208.
283. 388 U.S. 1 (1967).
284. See, e.g., Hunter v. Underwood, 471 U.S. 222 (1985); Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
285. JOHN HART ELY, DEMOCRACY AND DISTRUST 145-48 (1980).
286. The ADEA, for example, seems to have been a perfectly run-of-the-mill antidiscrimination statute whose application to the states had even been approved by the Court. See EEOC v. Wyoming, 460 U.S. 226 (1983). There was no reason to suspect either that Congress was concealing its purposes or that these purposes, at the time of the statute's enactment, were unconstitutional.
287. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 672 (1999); see, e.g., 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 959 (3d ed. 2000) ("Laws enacted by Congress pursuant to § 5 [have] suddenly been saddled with something between intermediate and strict scrutiny . . . .").
288. See, e.g., Kazmier v. Widman, 225 F.3d 519, 523-24, 529-30 (5th Cir. 2000).
289. City of Boerne v. Flores, 521 U.S. 507, 523 (1997).
290. Thus Boerne observed that RFRA "is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens." Id. at 534.
291. Boerne noted that "[t]he substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith." Id. at 534.
292. Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976).
293. Ex parte Virginia, 100 U.S. 339, 346 (1880).
294. Boerne, 521 U.S. at 535.
295. Kimel v. Fla. Bd. of Regents, 120 S. Ct. 631, 644 (2000).
296. Planned Parenthood v. Casey, 505 U.S. 833, 863 (1992) (opinion of O'Connor, Kennedy, and Souter, JJ.) (quoting Charles Black, The Lawfulness of the Segregation Decisions. 69 YALE L.J. 421, 427 (1960)).
297. Klarman, supra note 264, at 253.
298. Brown v. Bd. of Educ., 347 U.S. 483, 492-93 (1954).
299. J.E.B, v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994) (citations omitted); see also Heckler v. Mathews, 465 U.S. 728, 745 (1984); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982).
300. United States v. Virginia, 518 U.S. 515, 534 (1996).
301. Rice v. Cayetano, 120 S. Ct. 1044, 1057 (2000). On the essential dependence of "dignity" upon changing social norms, see ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 180-84 (1995).
302. Palmore v. Sidoti, 466 U.S. 429, 432 (1984).
303. For a discussion of the relationship between antidiscrimination law and ambient social norms of equality, see Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CAL. L. REV. 1 (2000); Robert Post, Response to Commentators, 88 CAL. L. REV. 119 (2000); and Reva B. Siegel, Discrimination in the Eyes of the Law: How "Color Blindness" Discourse Disrupts and Rationalizes Social Stratification, 88 CAL. L. REV. 77 (2000). 315 Of course as the Court undertakes to speak to and for the nation, the Court can reproduce and rationalize various forms of inequality amongst the social groups that compose the nation Cf. Siegel, supra note 314, at 114-16; Siegel, supra note 149, at 2179-84. For an analysis of this dynamic in constitutional interpretation within a collective memory framework see Reva B Sieeel Collective Memory and the Nineteenth Amendment: Reasoning About the Woman Question" in the Discourse of Sex Discrimination, in HISTORY, MEMORY, AND THE LAW (Austin Sarat & Thomas R. Kearns eds., 1999).
304. For a discussion, see Robert Post, Theories of Constitutional Interpretation, 30 REPRESENTATIONS 13, 23-30 (1990).
305. United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 847 (5th dr. 1966), aff'd en banc, 380 F.2d 385 (5th Cir. 1967); cf. GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 52 (1991) ("The numbers show that the Supreme Court contributed virtually nothing to ending segregation of the public schools in the Southern states m the decade following Brown."). For a comprehensive discussion, see ROSENBERG, supra, at 39-157.
306. Judge Wisdom's discussion in Jefferson County is exemplary. Judge Wisdom welcomed the Guidelines of the U.S. Office of Education, Department of Health, Education, and Welfare, designed to implement Title VI of the Civil Rights Act of 1964, as an immense and necessary assistance in finally achieving the school desegregation constitutionally mandated by Brown. "Title VI of the Civil Rights Act of 1964 . . . was not only appropriate and proper legislation under the Thirteenth and Fourteenth Amendments; it was necessary to rescue school desegregation from the bog in which it had been trapped for ten years." Jefferson County 372 F.2d at 856. ROSENBERG, supra note 317, argues that the Court's ineffectiveness extended not only to school desegregation, but also to transportation, housing, and public facilities and accommodations.
307. ROSENBERG, supra note 317, at 82; see, e.g., Bush v. Orleans Parish Sch. Bd., 138 F. Supp. 337, 342 (E.D. La. 1956) ("The problem of changing a people's mores, particularly those with an emotional overlay, is not to be taken lightly." (Wright, J.)), aff'd, 242 F.2d 156 (5th Cir. 1957).
308. 320. 358 U.S. 1 (1958).
309. Cox, supra note 160, at 94; cf. ACKERMAN, supra note 211. at 137 (arguing that it was because "Brown became a symbol energizing a multiracial coalition of blacks and whites into an escalating political struggle against institutionalized racism" that "Brown came to possess the kind of numinous legal authority that is . . . uniquely associated with legal documents that express the considered judgments of We the People").
310. Black, supra note 264, at 70.
311. Cox, supra note 160, at 121.
312. 426 U.S. 229 (1976).
313. See infra notes 327-333.
314. Sager, Justice in Plain Clothes, supra note 137, at 420-22. Bur cf. Siegel, supra note 143, at 1132-48 (exploring alternative interpretive pathways available to the Court). 327. See ROBERT A. BURT, THE CONSTITUTION IN CONFLICT 303 (1992) ("The condemnation of race segregation in the 1964 Civil Rights Act . . . bestowed legitimacy on the Supreme Court's ruling in Brown v. Board of Education in a way that the Court could never have accomplished on the basis of its authority alone.").
315. 411 U.S. 677 (1973).
316. Id. at 687-88 (Brennan, J.) (footnotes omitted).
317. Pub. L. No. 92-261, § 2, 86 Stat. 103, 103.
318. E.g., Reed v. Reed, 404 U.S. 71, 76 (1971); Goesaert v. Cleary, 335 U.S. 464 (1948).
319. H.R. REP. NO. 92-238, at 5 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2141 (Equal Opportunity Act of 1972) ("Discrimination against women is no less serious than other forms of prohibited employment practices and is to be accorded the same degree of social concern given to any type of unlawful discrimination."); see also S. REP. NO. 92-415, at 7-8 (1971).
320. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
321. Craig v. Boren, 429 U.S. 190 (1976).
322. Kimel v. Fla. Bd. of Regents, 120 S. Ct. 631, 647 (2000) (quoting City of Boerne v. Flores, 521 U.S. 507, 532 (1997)).
323. 120 S. Ct. 1740, 1759 (2000).
324. Id. at 1755.
325. Id.
326. Id.
327. Id.
328. Id. at 1758.
329. In its enthusiasm to demonstrate that the civil rights remedy is not a congruent and proportional response to the gender biases in the criminal justice system that prompted Congress to enact § 13981, the Court takes liberties in characterizing Congress's factual findings and asserts, without any supporting citation, that "Congress' findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most states." Id. at 1759; see supra text accompanying note 164.
330. See Siegel, supra note 149, at 2188-96 (identifying doctrinal reasons why Section 1 cases only weakly constrain gender bias in the administration of the criminal law and suggesting that the civil rights remedy might supplement adjudication under Section 1 as a means of redressing the states' failure to protect women from assault).
331. The Court's analysis of the Commerce Clause invokes separate spheres discourse to identify markets with matters of "national concern" and families with matters of " local concern"; its analysis of the Fourteenth Amendment discusses violence against women as occurring in a "private" realm beyond the proper reach of federal law; and the opinion as a whole concludes by sounding the familiar protectionist theme that any civilized society protects its women against sexual assault.