Bench Memos

Re: EPC and the Courts

Professor Bradley, your input is very welcome. I don’t think the historical record is so clear that the ratifiers of the Fourteenth Amendment wanted Congress to play such a permanently dominant role in interpreting and applying the Amendment’s provisions. It’s true that Reconstruction Republicans had a profound distrust of the Supreme Court and the rest of the judiciary, fueled most prominently by the Dred Scott decision, which they viewed as an outrageous example of judicial activism in service of the slave-owning South. This was a big part of the reason they gave Congress enforcement power, to provide an alternative mechanism of legislative authority to ensure that the Fourteenth Amendment would not be simply disregarded by a hostile judiciary.

But it just doesn’t follow from this that Equal Protection claims were meant to be non-justiciable, or that judges were to lack all power to strike down state laws that violate the Fourteenth Amendment. The ratifiers gave Congress enforcement power not because they didn’t want the judiciary to enforce the Amendment, but because they were worried that the judiciary would not in fact do so. They were afraid, in other words, that the judiciary would abdicate its responsibility to apply the requirements of the Constitution. And it is clear that this is a responsibility of the judiciary.

When a citizen asserts that he has been injured by a state that has denied him the equal protection of its laws, Article III empowers the courts to hear that claim as a case arising under the Constitution. The judiciary then has an independent obligation to determine how the Constitution applies, as was well settled for more than half a century before the Fourteenth Amendment was ratified. As Justice John Marshall wrote in Marbury v. Madison:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.