Problems With Boerne v. Flores
Four objections for originalists
Earlier this week I casually suggested that “everybody knows” that the Court’s decision in Boerne v. Flores is wrong. That might have been an overstatement — indeed it is notable that in Boerne itself the only real dispute among the Justices was about whether Smith was right. Nobody took the position that RFRA was constitutional even if Smith was wrong. And while Justice Breyer subsequently launched something of a critique in his Garrett dissent, none of the current originalist Justices have demonstrated any qualms about it. So I thought it might be worth unpacking a few thoughts about the proper understanding of Congress’s Section Five power.
In my view Boerne is right about a couple of high-level points. Congress’s Section Five power is to “enforce” the rest of the Fourteenth Amendment; and the power to enforce, even under the broad sweep of McCulloch v. Maryland, is not the same as the power to alter, revise, or change. So the Section Five power is limited to the power to enforce the Constitution, not the power to change it.
Boerne is wrong, however, to the extent that it equates the meaning of the Constitution with the Court’s understanding of the Constitution. The Constitution and the Supreme Court are not the same thing. Still, under the standard departmentalist view, while Congress is entitled to interpret the Constitution in the exercise of its own powers, the Court is entitled to interpret the Constitution in the exercise of its own powers, so judicial review of Section Five legislation would still proceed from the Court’s view about what the Constitution means.
These are two of the building blocks of Boerne. But even if one accepts the basic distinction between defining a congressional power versus carrying into effect, I think there are several subsequent issues that Boerne does not handle well.
One is how to think about doctrines that expound a general right in more specific terms -- i.e. what we might call decision procedures, implementing rules, or doctrinal specifications. Courts expound such things all the time, and that may be fine, even for originalists. But even if courts have authority to do this, congressional legislation need not expound the doctrine in the same way, nor is it necessarily invalid because it fails to do so. We’d need to know more about the doctrine in question.
Additionally, in many cases the courts’ doctrine is specifically based on separation of powers concerns that courts should avoid certain kinds of line-drawing or decisionmaking; in those cases it would be especially unlikely that Congress should have to follow the same doctrine. That is at the core of the McConnell critique of Boerne. And since so much of Section One of the Fourteenth Amendment is abstract, this is a ubiquitous problem.
A second issue with Boerne is how to think about enforcement legislation. Boerne seems to say that even for legislation that is in the enforcement category rather than the interpretive category, the Court still gets to review the scope and nature of the enforcement quite substantially. That is part of congruence and proportionality. But that seems to be significantly stricter than the McCulloch standard, or than the 1868 gloss on the McCulloch standard.
Third there is the issue of certainty and clarity. When deciding whether a state has violated Section One, courts regularly give the state at least a little bit of a presumption of constitutionality, especially once we get beyond race discrimination and violations of the bill of rights to other kinds of discrimination and to unenumerated rights. But the states should not get the same kind of presumption once there is a statute enacted under Section Five. Indeed, if anything the presumption of constitutionality should now point in the other direction, leading courts to defer to Congress under Section Five just as they would have deferred to the states under Section One. This is Chris Green’s critique.
Now if one thinks all constitutional questions should be decided with zero presumption in favor of legislative or executive action, maybe this issue would disappear, but Boerne does not state such a rule and the Court certainly does not employ one in all Fourteenth Amendment cases.
Perhaps one could supply an account of all three of these problems in which there would still be substantial judicial review of Congress’s enforcement power. But I don’t think I’ve read one, and I don’t think the results would look that much like Boerne.
Finally, it is also worth thinking about the lesson of the Thirteenth Amendment’s enforcement power. Many of the proponents of the Fourteenth Amendment thought that the Thirteenth Amendment justified the Civil Rights Act of 1866. (Not all, of course — importantly, both Andrew Johnson and John Bingham did not think so, which is one reason we ended up with Sections One and Five of the Fourteenth Amendment.) For the Thirteenth-Amendment-Civil-Rights-Act position to be even plausible, let alone correct, one would need a broader view of the Thirteenth Amendment enforcement power than the view taken in Boerne. And the Fourteenth Amendment’s is written the same way.
Now, it may well be that the Thirteenth-Amendment-Civil-Rights-Act position was not right, and it might even be that it was not plausible. David Currie reports that the arguments for broad enforcement power under the Thirteenth Amendment were made only after the ink was dry on the Amendment, and suggests that they were post hoc rationalizations rather than the meaning of the Amendment as it was ratified. But even if that is true, these Thirteenth Amendment arguments were made before the Fourteenth Amendment was passed. So even if the arguments came too late to convince us of the scope of the Thirteenth Amendment, they might still inform the meaning of the Fourteenth.
