May 30, 2019 | Political Speech Under Burson v Freeman
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Congress has the power to enforce this amendment by law.
|Enforcement of the Constitution (Congruence and Proportionality)||Important Cases|
|The section of the 14th Amendment, similar to sections in several other amendments, is known as an “enforcement provision.” It has no substantive law unto itself. Rather, it provides the authority for Congress to make laws to uphold the other provisions of the amendment. The text of the section is as follows: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”|
But while this statement may sound clear, it has required some judicial fine-tuning. In the first century after the passage of the 14th Amendment, the Supreme Court occasionally struck down Congressional actions for being outside the scope of what is covered by the other provisions. However, it was a recent case, City of Boerne v. Flores (1997), which today governs the test for whether Congress has acted within its authority to enforce the 14th Amendment.
In Boerne, the Court examined the passage of the Religious Freedom Restoration Act, a Congressional statute that was actually crafted in response to another Supreme Court case (Employment Division v. Smith (1990)), where the Court refused to invalidate a law prohibiting peyote use, even though its use was religious in nature for certain Native American rituals.
The RFRA tightened the judicial standard for examining alleged infringements on religious freedom. But the Court held this statute to be unconstitutional. By way of reminder, even though religious freedom issues are contained in the 1st Amendment, these amendments are only technically applicable to infringements by the federal government. They are made applicable to state and local governments through Incorporation into the first section of the 14th Amendment. Meaning, the section 5 enforcement provision applies to the 1st Amendment as well.
The RFRA was unconstitutional, according to the Court in Boerne, because Congress was not enforcing a constitutional protection, Congress was defining a constitutional protection: “Congress does not enforce a constitutional right by changing what the right is.”
The Court, then, came up with a test known as “Congruence and Proportionality.” According to this test, used in subsequent cases as well, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” This means that, while Congress cannot define rights, it may identify injuries that are being inflicted in line with what is supposed to be prohibited by the 14th Amendment. Provided Congress’ response is proportional to the injury being caused, the act will be upheld.
However, as a footnote, while the Congruence and Proportionality Test has been accepted as law, not all the Justices on the Supreme Court are pleased with the vagaries of its meaning. According to Justice Scalia, “The congruence and proportionality standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decision-making.”
|Employment Division v. Smith (1990)|
City of Boerne v. Flores (1997)