Federal Civil Rights Statutes

1. Federal Civil Rights Statutes

2. Victory over States’ Rights • 13th Amendment (1865) • § 1: Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the Unites States, or any place subject to their jurisdiction. • § 2: Congress shall have power to enforce this article by appropriate legislation. • Civil Rights Act of 1866 • Congress prohibits “black codes” • Johnson vetoes – not authorized by § 2 Mississippi Black Codes Con Law II

3. Con Law II

4. Con Law II

5. then there was the 14th amend. • Section 1 • citizenship • privileges or immunities • due process • equal protection • Section 5: • The congress shall have power to enforce by appropriate legislation, the provisions of this article. compare to necessary & proper clause Con Law II

6. Civil Rights Enforcement Power • Principal question • To what extent is Congress’ power under § 5 (§ 2) limited by S.Ct’s interpretation of § 1? • Section 1 contains “self-executing” rights • Per Marbury, S.Ct. has final say on § 1 meaning • Did § 5 give congress power to further the purposes of § 1, or just track S.Ct. interpretation? • § 5 as a necessary & proper clause • Whose job (Congress or Court’s) to decide? • “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Con Law II

7. Civil Rights Cases (1883) • Bradley decimates congress’ power • Can only “enforce the prohibitions” of § 1 • In absence of statute, § 1 is self-executing • What does § 5 add? • This is the “whole of it” [congress’ power] • Harlan: Court fails to actuate Amends’ intent • Rights vs. remedies • Congress can add non-self-executing remedies • 1964 Civil Rights Act based on commerce cl • Civil Rights Cases eroded in late 1960s. Con Law II

8. Civil Rights Era – 1960s • Civil Rights Act of 1964 • 13th Amd (anti-slavery) does not require state action • Congress has power under § 2 to determine the badges and incidents of slavery • 14th Amd does require state action • But under § 5 Congress could legislate to further the principles of § 1 • Including prohibiting private discrimination Con Law II

9. City of Boerne v. Flores(1999) • Background: • Cantwell v. Connecticut (1940) • Free Exercise clause “incorporated” via 14th amd DP • Sherbert v. Verner (1963) • Strict scrutiny applies where purpose or effect of a law is to burden religion (even indirectly) • Dept. Hum Res. v. Smith (1990) • Free Exercise clause not implicated by law that only incidentally impairs religious exercise • Law must be aimed at religion to trigger clause Con Law II

10. City of Boerne v. Flores(1999) • Religious Freedom Restoration Act • Congress restores pre-Smith standard • Doesn’t affect § 1, but • Creates a statutory cause of action • S.Ct. holds RFRA creates a new right, not just a remedy, and exceeds congress’ § 5 power • Bradley theory resurrected • Congress may not use § 5 to further ideals of § 1; but only to provide supplemental remedies • One exception: congress may act “prophylactically;” to prevent imminent § 1 violations from occuring Con Law II

11. City of Boerne v. Flores (1999) • Boerne Test: Section 5 laws must be: • Congruent • Proportional laws that are not congruent to a section 1 violation create new rights rather than remedy existing ones laws that are not pro-portional to the threat & scope of section 1 violations create new rights rather than prevent violations of existing ones Con Law II

12. City of Boerne v. Flores (1999) • Congruence • Relation between means used and ends to be achieved • Ends must be to remedy or prevent constitutional violation • Means must be designed for this end; not to be substantive • I.e., means must go no further than “appropriate” to remedial end • Proportionality • The scope of the means used must relate to degree of constitutional violation • burdens & sanctions imposed by § 5 law must be proportional to risk of § 1 violation • Since congress is confined to “remedying” (and preventing) unconstitutional state action, there must be a record of such, lest the remedy become substantive in character • RFRA applies mostly to state laws that are unlikely to be unconst. Con Law II

13. City of Boerne v. Flores (1997) • Boerne Test: Section 5 laws must be: • Congruent • Proportional • Protection of civil rights under 14th Amd • Shared responsibility with congress, or • Exclusively a judicial function • As § 1 diminishes (e.g., intent, state action), so too does Congress’ power to protect civil rights By holding that congress may not expand rights under § 5, court declares itself sole enforcer of § 1 • Coupled with expanded interpretation of state sovereign immunity Con Law II

14. U of Alabama v. Garrett (2001) • ADATitle Ibars discrimination against disabled • Disabled are not a suspect class • Discrimination against disabled subject to RB • Unlikely that state action (even discriminatory) would violate § 1 (equal protection clause) • ADA fails Boerne test • Not congruent because doesn’t track EP • Not proportional because risk of violation is low • Congress may use commerce power, but not § 5, to ban discrimination against disabled • But cannot abrogate sov. immunity under former Con Law II

15. Tennessee v. Lane (2004) • ADA Title II prohibits discrimination against qualified individuals by a “public entity” • Tennessee state courthouses not accessible • Congressional findings: same as Supreme Court’s “indicia of suspect class” for equal protection • disabled are discrete and insular minority • history of purpose-ful discrimination • unfair stereotype assumptions Con Law II

16. Tennessee v. Lane (2004) • Boerne test: • Identify constitutional rights at stake • irrational discrimination against disabled • due process access to judicial system (courts) • criminal procedure rights (6th am. confrontation) • congruence and proportionality Con Law II

17. Tennessee v. Lane (2004) • Congruence: • Statutory remedy must match const’l rights • Aimed at due process violations (strict scrutiny) • Proportionality: • Risk and scope of const’l violation must justify prophylactic (preventative) measures • High risk: “pattern of unconstitutional treatment” – up to 76% of public services were inaccessable • Scope/breadth: Title II does not over-respond to const’l violations. Only reasonable accommodations are required. • If it did, the Act might be viewed as an attempt to “rewrite the 14th Amd;” i.e., create new rights Con Law II