[SOUND] I said that discussing Congress's powers focus, especially on three. I've already discussed the commerce clause and the taxing, and spending power. The third set of powers of Congress that I want to focus on Congress authority under the Post-Civil War amendments. When I speak of the Post-Civil War Amendments, I'm of course talking about the 15th, 14th and 15th amendments. These dramatically changed the nature of the United States. They eliminated slavery. They altered the relationship between the national government and the states and each of these amendments give Congress the authority to enforce it. Let me talk about each of these amendments a bit and what it provides and then speak more generally about Congress's authority to legislate pursuant to the 13th, 14th and 15th amendments. The 13th Amendment was ratified in 1865. It prohibits slavery and involuntary servitude. To understand the 13th Amendment, I need to ask a trick question. How many slaves were freed by the Emancipation Proclamation? The correct answer is none. Abraham Lincoln's Emancipation Proclamation was certainly symbolically important, but it had no practical effect in freeing slaves. Lincoln knew this and Lincoln, therefore, thought it was essential. That before the Civil War ended, an amendment be added to the Constitution that eliminated slavery. This was the 13th Amendment. And in fact, Steven Spielberg made a movie titled Lincoln, which was really the story of how the 13th Amendment came to be ratified. The 13th Amendment is unique among constitutional provisions. It applies directly to private conduct. It says that people cannot be or own slaves. In section two of the 13th Amendment says that Congress by appropriate legislation may enforce the 13th Amendment. But quickly, it became apparent that just eliminating slavery was not enough. The former rebel states immediately took action after the Civil War to deny all rights and privileges to the former slaves were generally to African Americans. And so, it became apparent that a 14th Amendment was essential. The 14th Amendment does many things. Section 1 of the 14th Amendment begins by saying that all persons born or naturalized in the United States are citizens of the United States. This is to overturn the supreme court's infamous decision in Dred Scott versus Sanford where the court said that slaves are property, chattels of the owners and were not citizens. Section 1 of the 14th Amendment makes clear that all who are born in the United States and all who are naturalized are United States citizens. This idea that all who are born in the United States are citizens has been somewhat controversial recently. These controversies refer to those who are called birthright citizens and imagine that the person is born to parents were not lawfully in the United States, but the person is born in the United States under section 1 of the 14th Amendment, that person is a United States citizen. Changing it, therefore, would require a constitutional amendment. Section 1 of the 14th Amendment goes on from there and says that no state can deprive any citizen of the privilege of immunities of the United States citizenship, nor denied any person equal protection of the laws or deprive any person life, liberty or property without due process of law. These provisions were all about limiting state and local governments, and what they could do to individuals. Section 5 of the 14th Amendment, which is my focus here says that Congress can enforce the 14th Amendment by appropriate legislation. The ratification and adoption of the 14th Amendment is one of the more amazing stories in American history. Very quickly, all of the former rebel states rejected the 14th Amendment. It's not surprising that Congress, which at this point compressed of just of Northerners, because the South had succeeded and hadn't been readmitted to the Union in the Congress was outraged. Congress believed that this was an effort by the South to undo who was the victor of the Civil War. So, Congress passed the Reconstruction Act. The Reconstruction Act created military rule over the former rebel states. Literally, the South was divided into five regions and a general was placed in charge of each. Section 3 of the reconstruction act said that no former rebel state can readmitted to the Union or entitled to membership in Congress until it ratified the 14th amendment. The rebel states were outraged by this. They saw this for what it was, blatant coercion, but they also had no choice. Many made clear that they were ratifying the 14 Amendment under protest but the story doesn't stop there. Two northern states, Ohio and New Jersey that had ratified the 14th Amendment, then rescinded the ratification of the 14th Amendment. At this point, the then Secretary of State Seward sent memoranda to Congress saying, we now have the requisite three-fourth of the states having ratified the 14th Amendment. So, it's part of the constitution. In other words, counting all of the southern states that ratified the 14th Amendment under protest and counting, Ohio and New Jersey that had rescinded their ratification as having proved it. It got to three-quarters of the states. Congress said, having been duly informed by the Secretary of State that the 14th Amendment was ratified, it's now a part of the constitution. So, notice there's all sorts of reasons to question the legitimacy of the 14th Amendment. It was passed by a Congress where only Northerner's were represented, Southern states rejected it. They then approve it only when coerced by the same Congress and two of the states that we needed to count to three-quarters, they rescinded their ratification, but the 14th Amendment has been the law ever since 1868. Again, so often as I'm asking this lecture. Do the ends justify the means? The 14th amendment was crucial in protecting people, especially former slaves from southern states, but did that justify how it was adapted? So I said, Section 5 of the 14th Amendment says, Congress has the power to adopt appropriate legislation to enforce the amendment, but Congress wasn't satisfied at this point. Congress believed that the key to equality in the South was through voting and Congress believed that it was essential that those who had been disenfranchised, kept from voting, be given this power. And so in 1870, the 15th Amendment was adopted. The 15th Amendment says that no person should be denied the right to vote on account of race or previous conditions of servitude. Section 2 of the 15th Amendment says, Congress has the power to enforce this amendment through appropriate legislation. So when I ask the question, what is Congress authority to legislate under the Post-Civil War Amendments? What I'm really talking about is what is Congress's power under Section 2 of the 13th Amendment, Section 5 of the 14th Amendment and Section 2 of the 15th Amendment? Here, I want to focus on two sub-questions. First, who can Congress regulate? And then second, what can Congress do under these amendments? In terms of the first question, who can Congress regulate? The issue came to the supreme court not long after the ratification of these amendments in 1883 in a case called the Civil Rights Cases. The Civil Rights Cases involved a federal statute adopted in the year 1875. It was civil rights law that prohibited private businesses like places of public accommodation, inns and hotels. Places of amusement, like parks from discriminating on the basis of race and the supreme court declared that major federal civil rights statute to be unconstitutional. The supreme court said, Congress's power under section 2 of the 13th Amendment an section 5 of the 14th Amendment is limited to regulating government action. Congress cannot use this power according to the court to prohibit private discrimination. Since the 1875 Civil Rights Act was about prohibiting private hotels, inns from discriminating, private amusement parks from discriminating. The supreme court declared it unconstitutional. The supreme court said, for instance, with regard to the 14th Amendment, that section 1 of the 14th amendment is all directed at state and local government actions. That no state can deprive any citizen the privilege immunities of citizenship. That no state can deny any person equal protection of the laws. That no state can deprive any person of life, liberty or property without due process of law. And the supreme court said, since the 14th Amendment in section 1 is limited to regulating state local government action. Congress's power under section 5 is also limited to regulating state and local government action. And so, this explains something I said earlier in this part of the lecture. I said that when congress adopted the Civil Rights Act of 1964, Congress chose to use its Commerce Clause authority. Why? Because the Civil Rights Act, the rights case in 1883 declaring unconstitutional the Civil Rights Act of 1875 made clear that Congress under the 13th and 14th amendments could not regulate private behavior. Congress had to look to another power to regulate private behavior and used its commerce clause authority. Well, the law with regard to who Congress can regulate under the 13th Amendment has changed, but the laws to who Congress can regulate under the 14th Amendment has not changed. In 1966, in a case called Jones versus Alfred Mayer. The supreme court said that Congress under section 2 of the 13th Amendment could prohibit private race discrimination. Jones versus Alfred Mayer involved a federal statute adopted after the Civil War, 42 United States Code section 1982. That prohibits discrimination in regards to sale or rental of property and the question is could that then be applied with regard to private race discrimination housing? And the supreme court in Jones v Alfred Mayer said, yes. Congress when it legislates under the 13th Amendment can prohibit private race discrimination. The court said, the 13th Amendment itself is directed at private behavior. It says that no one can be or own a slave. The court said Section 2 of the 13th Amendment was meant to give Congress broad power and I'll quote the words of the court, to eradicate the badges and incidents of slavery. To eliminate the continuing negative effects of the pernicious, abhorrent practice of slavery. And so, the court said, when Congress section 2 of the 13th Amendment, it can prohibit private race discrimination. Today, if Congress wants to adopt any kind of civil rights law with regard to race, prohibiting race discrimination, it can do so under section 2 of the 13th Amendment. But the courts restrictive interpretation of who Congress can regulate in section 5 of the 14th amendment has not been over ruled. There was a time in a case called the United States versus guest where five justices seemed to indicate the Congress under section 5 of the 14th Amendment should be able to prohibit private race discrimination. But in United States versus Morrison in the year 2000, the supreme court closed the door on that. The supreme court reaffirmed what Civil Rights Cases said in 1883. Congress under section 5 of the 14th Amendment can regulate only state and local governments, it cannot regulate private conduct. I mentioned Morrison just a little bit ago when I was discussing Congress's Commerce Clause power. Morrison of course, involves the civil damages provision of the Violence Against Women Act. A provision that authorized victims of gender motivated violence to sue in federal court. The United States government argued to the supreme court that this was constitutional, as an exercise of Congress's Commerce Clause power. I explained how the court rejected that argument. The United States government argued in the alternative that Congress could adopt this law pursuant to section 5 of the 14th amendment, but the supreme court five to four rejected that argument. The Supreme Court said, this is the Civil Rights Case is held 1883, Congress under section 5 of the 14th amendment can only regulate state and local governments and cannot regulate private conduct. The court said, section 1 of the 14th Amendment is directed only at state and local governments. Therefore, Congress under section 5 can regulate only state and local governments. So imagine today that Congress wants to adopt a law, that prohibits private employers from discriminating based on sexual orientation. Might surprise you to know that there's no federal law that prohibits employers from discriminating based on sexual orientation. What power could Congress use to adopt such a law? It couldn't use section 2 of the 13th amendment. The 13th Amendment is just about race discrimination and it can't use section 5 of the 14th Amendment, because Congress under section 5 of the 14th Amendment can limit what state and local governments do, but it can't regulate private conduct. So all that Congress could use to adopt a law prohibiting private employers from discrimination and sexual exploitation is to use its Commerce Clause power that I talked about earlier. So that's one question I wanted to talk about, who can Congress regulate under the Post-Civil War Amendments? It's clear under the 13th Amendment, Congress can prevent government or private race discrimination. But under the 14th, unlike under the 15th amendments, Congress can regulate only state and local governments. Well, this then brings me to the other question about the Post-Civil War Amendments. What can Congress do?
