The Supreme Court and Congress's Power to Enforce Constitutional Rights: An Overlooked Moral Anomaly

Abstract:     
This article identifies a moral anomaly the Supreme Court has created in recent cases interpreting Congress's remedial powers under the Fourteenth Amendment. It shows that the Court has unwittingly decided that the Constitution today does not authorize as much federal protection for constitutional rights and equality as it provided in the nineteenth century to protect the property rights of slave owners in their slaves. Before the Civil War, Congress enacted two statutes that enforced slave owners' constitutionally secured property rights with civil remedies, including a civil fine and tort damages, and criminal penalties applicable to anyone who interfered with the slave owner's constitutional right to recover fugitive slaves. Congress also created an elaborate federal enforcement structure. The United States Supreme Court upheld these statutes and Congress's plenary power to enact them before slavery was abolished by the Thirteenth Amendment. This article shows that the framers of the Civil Rights Act of 1866 and Fourteenth Amendment used these legislative and judicial precedents to insist that Congress had to possess plenary power to enforce the fundamental rights and equality of all Americans. It also shows that the framers acted on this presumption and exercised this plenary power by enacting the Civil Rights Act of 1866, by which they enforced the civil rights of United States citizens with the civil and criminal remedies and enforcement provisions of the Fugitive Slave Acts. To ensure the constitutionality of the Civil Rights Act, the framers expressly incorporated it into the Fourteenth Amendment. However, the Supreme Court's recent decisions hold that Congress does not possess the power to enforce the substantive rights secured by the Fourteenth Amendment that earlier Congresses exercised, with the Supreme Court's approval, to enforce the constitutionally secured property rights of slaveholders. The Supreme Court has thereby placed itself in the morally untenable position of affirming greater constitutional protection for the property rights of slave owners before the Civil War than it is willing to affirm for the protection of the fundamental rights and equality of all Americans today.

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