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ABF Faculty Fellow Publishes Article Providing a New Perspective on the History of the Fourteenth Amendment and the Supreme Court

September 20, 2018, ABF news

Christopher W. Schmidt, Faculty Fellow at the American Bar Foundation (ABF) and professor at Chicago-Kent College of Law, recently published an article in Northwestern University Law Review entitled “Section 5's Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment Before Katzenbach v. Morgan.”

The article provides a new perspective on the history behind the Supreme Court’s controversial 1966 decision in Katzenbach v. Morgan. The case involved the reach of congressional power under Section 5 of the Fourteenth Amendment, which gives Congress the authority to “enforce, by appropriate legislation” the rights within the amendment. Justice William Brennan wrote the majority opinion in which he maintained that under Section 5 Congress shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. 

In the 1997 case City of Boerne v. Flores, the Supreme Court flatly rejected thebroad reading of Section 5 that Justice Brennan offered in Morgan. Only the Court could define Fourteenth Amendment rights, the Boerne Court declared, citing the need to maintain the separation of powers and protect the Constitution from being altered by shifting majorities in Congress. As a result, today Justice Brennan’s opinion is treated as a puzzling digression in the history of the Fourteenth Amendment. “Few decisions in American constitutional law have frustrated, inspired and puzzled more than Katzenbach v Morgan,” writes Schmidt.

Schmidt’s article revises our understanding of the political and legal conditions that gave rise to Morgan. He demonstrates that the Morgan decision was not an anomaly, but instead the result of several decades of debates in the courts, in Congress, and among scholars over the extent of congressional power under Section 5. These are what Schmidt calls the “forgotten years” of Section 5.

The article shows that ideas about Section 5 were shaped in debates about a federal authority on a range of issues, including prohibiting lynching, banning poll taxes, and desegregating schools. By resurrecting these now largely forgotten constitutional debates, Schmidt argues that the seemingly radical assumptions Brennan offered in Morgan were in fact the culmination of decades of arguments developing the possibility that Congress had a central role to play in giving meaning to the Fourteenth Amendment.

Schmidt’s revisionist history of the Morgan opinion identifies a widely accepted vision of the Fourteenth Amendment that differs sharply from the far narrower interpretation the Court follows today. In examining the lessons from Section 5’s “forgotten years,” Schmidt considers whether future generations of Americans may once again return to Morgan’s commitment to a project of giving meaning to the Fourteenth Amendment in which Congress as well as the Supreme Court plays a leading role. 

To read Schmidt’s article in the Northwestern University Law Review, click here

About Christopher Schmidt: Christopher Schmidt researches U.S. legal and constitutional history, with a focus on the relationship between intellectual history, social movements, and constitutional change in the twentieth century. He is the author of The Sit-Ins: Protest and Legal Change in the Civil Rights Era (University of Chicago Press, 2018) and is currently working on a new book project, Civil Rights: An American History, which examines how Americans have struggled over the meaning of civil rights from the Civil War through today. He earned a J.D. from Harvard Law School, a Ph.D. in American studies and an M.A. in history from Harvard University. He is on the faculty of at Chicago-Kent College of Law, where he serves as a Professor of Law, Associate Dean for Faculty Development, and Co-Director of the Institute on the Supreme Court of the United States. He is also the editor of Law & Social Inquiry.

About the American Bar Foundation : The American Bar Foundation (ABF) is among the world's leading research institutes for the empirical and interdisciplinary study of law. The ABF seeks to expand knowledge and advance justice through innovative, interdisciplinary, and rigorous empirical research on law, legal processes, and legal institutions. To further this mission, the ABF will produce timely, cutting-edge research of the highest quality to inform and guide the legal profession, the academy and society in the United States and internationally. The ABF's primary funding is provided by the American Bar Endowment and the Fellows of the American Bar Foundation

Posted by Whitney Peterson

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