Con Law IFederalism and State Sovereignty

Enforcing the Civil War Amendments

Congress may enforce the Fourteenth Amendment by "appropriate legislation"; City of Boerne v. Flores (1997) requires "congruence and proportionality" between the injury and the remedy; Shelby County v. Holder (2013) struck down the Voting Rights Act's coverage formula as based on old data.

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The Thirteenth (1865), Fourteenth (1868) and Fifteenth (1870) Amendments each end with a grant of power: "Congress shall have power to enforce this article by appropriate legislation." These enforcement clauses were a major shift in federalism, giving Congress power to act against the states to protect rights. The questions are how far "enforce" reaches, and who decides what the amendments mean.

The three Civil War amendments, 1865–1870.

Why it works

Two views of "enforce." On one view, Congress may define the rights the amendments protect, at least to expand them, since it is the body the amendments chose to enforce them; Katzenbach v. Morgan (1966) used broad language along these lines. On the other, Congress may only remedy or prevent violations of rights as the Court defines them, because if Congress could redefine the Fourteenth Amendment, it could change the Constitution by statute, which Marbury forbids. City of Boerne adopted the second view.

Key idea

Congress may enforce the Fourteenth Amendment by "appropriate legislation," but under City of Boerne v. Flores (1997) a Section 5 law must show congruence and proportionality between the injury and the remedy. Shelby County v. Holder (2013) struck down the Voting Rights Act's coverage formula (Section 4(b)) as based on old data; Section 2 remains.

Worked example: What Shelby County did and did not do

After Shelby County, which parts of the Voting Rights Act still operate?
  1. Section 4(b), the coverage formula, was struck down.
  2. Section 5 preclearance was not itself held invalid, but with no formula it applies to no one unless Congress writes a new one.
  3. Section 2, which bans voting practices that discriminate on account of race nationwide, remained in force.

Answer: Section 2 and the rest of the Act still operate; preclearance is dormant without a formula.

Worked example: Who decides what the amendment means?

Congress passes a law under Section 5 that requires every state to meet a standard stricter than anything the Court has found the Fourteenth Amendment to require, with no record of state violations. What question would a court ask under Boerne?
  1. Boerne says Congress may remedy or prevent violations of the right as the Court defines it, not redefine the right.
  2. The court compares the injury Congress identified with the remedy it chose.
  3. A sweeping remedy with little record of violations looks like a new rule, not enforcement.

Answer: Whether the law is congruent and proportional to a record of constitutional violations; without one, the law likely fails, as RFRA did.

Common mistake

Thinking Shelby County struck down the whole Voting Rights Act. It struck the coverage formula of Section 4(b); Section 2's nationwide ban remains. In 2026 the Court narrowed how Section 2 applies to redistricting. Check which section a case addresses before stating its effect.

Also remember Morrison (2000): Section 5 reaches state action, not private conduct. For the history of the Reconstruction amendments, see U.S. History I.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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