by William B. Glidden. Lanham: Lexington Books, Rowman & Littlefield, 2013. 188pp. Cloth $80.00. ISBN: 978-0-7391-8573-5. E-book $79.99. ISBN 978-0-7391-8574-2.
Reviewed by Daniel Hoffman, retired from Johnson C. Smith University. Email: guayiya [at] bellsouth.net.
This short book, authored by a former Treasury Department attorney who has a Ph.D. in history, contains a number of surprises. Its focus is the section five power of Congress to enforce the Fourteenth Amendment, its history and original meaning, and the Supreme Court’s evisceration of section five. The book has a brief Introduction and eight chapters.
Chapter One is an overview of the post-Civil War amendments and their supporting statutes. The congressional framers believed in natural rights to life, liberty, property and justice, and were determined to secure those rights to all.
Chapter Two looks more closely at the Thirteenth Amendment and the 1866 Civil Rights Act. These measures aimed at more than abolishing slavery: the intention of most supporters was that all Americans would enjoy full and equal life, liberty and property rights, under congressional protection. They often referred to the broad interpretation, advanced in CORFIELD V. CORYELL, of the fundamental privileges and immunities of national citizenship, and of the need to secure their enforcement within all of the states. A few Republicans, including John Bingham, doubted that the Thirteenth Amendment conferred such sweeping power on Congress. Congress passed the Civil Rights Act anyway.
Chapter Three reviews in detail the drafting of the Fourteenth Amendment, an intricate process propelled by Bingham’s continuing concerns and by other unresolved issues, with repeated disagreements and changes of course. Glidden’s account relies chiefly on primary sources, including the debates on subsequent legislation (the Enforcement Act of 1870 and Ku Klux Klan Act of 1871). He cites many later scholars, but does not directly address any whose interpretation of original meaning differs from his. According to Glidden, behind the disagreements there was a broad and deep Republican consensus: “The states have a duty to protect the people subject to their jurisdiction in their life, liberty, property, and pursuit of happiness, and all other rights incidental thereto, by the enactment and enforcement of reasonable and just laws. Congress has the power to protect these rights of the people by appropriate legislation, to support, modify, or fill in gaps for what the states are doing (or failing to do)” (p.54). In particular, under section five Congress can regulate private as well as public conduct, because a state’s failure to secure the protected rights violates the guarantees of section one.
Chapter Four, a bit of a digression, defends the subsequent extension of Fourteenth Amendment protections in ways that the framers did not [*412] contemplate and might well have disapproved of. It does so by distinguishing between the general principles enshrined in the Amendment and the application of those principles to specific cases. For Glidden, the principles are binding, but original expectations about their application are not.
Chapter Five recounts how the Supreme Court eviscerated the privileges and immunities clause and the enforcement power of section five. THE SLAUGHTERHOUSE CASES, a 5-4 decision, held in 1873, even before the end of Reconstruction, that nearly all of the privileges and immunities of citizens were aspects solely of state citizenship, and thus not protected by the Fourteenth Amendment. The Court then proceeded to hold in subsequent cases, culminating in the 1883 CIVIL RIGHTS CASES, that the Amendment granted protections only against state action, so that the provisions regarding private discriminatory action in the Enforcement Act, the Ku Klux Klan Act, and the 1875 Civil Rights Act were not authorized by section five. Glidden insists that these decisions were clearly unfaithful to the original meaning, but, disappointingly, offers no explanation – other than a vague reference to concern for states’ rights – for why a solidly Republican Court dealt so harshly with their party’s recent crowning achievements. His argument regarding the state action doctrine makes a curious distinction: because section one repeatedly provides that “no state shall ….”, that section indeed applies only to the states, and courts are correct in declining to enforce its terms directly against private actors. Yet the section five enforcement power of Congress, he repeats, does include the power to regulate private actions when the states fail to do so. Since section five simply states that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” it seems rather strained to contend that sections one and five are different in scope, and the judicial enforcement power is inferior to that of Congress. Suppose state officials wilfully stand idly by while masked men violate someone’s fundamental rights. Cannot those officials be sued in federal court for their inaction? Then why not the private actors as well?
Chapter Six briefly reviews the twentieth century history of civil rights legislation and the Court’s reactions. Cases could still be brought against state actors under the 1866 and 1871 Acts (now codified as 42 U.S.C. sections 1981-1983). The volume of such litigation, Glidden says, has had the perverse effect of prompting federal courts to adopt excessively narrow interpretations of Fourteenth Amendment rights. In enacting new laws about private conduct, Congress avoided the state action doctrine by relying on a broad view of its power under the Commerce Clause. This strategy was successful under the Warren and Burger Courts, but is growing problematic under the scrutiny of their more conservative successors, who are markedly less deferential toward Congress. For instance, in CITY OF BOERNE V. FLORES, the Court rejected Congress’s attempt under section five to prescribe standards for judicial review of religious freedom cases, announcing that Congress has no authority to interpret the Fourteenth Amendment independently from the Court. [*414]
Chapter Seven, titled, “The Judicial Supremacy and State Action Doctrines Should be Removed from Section Five,” pursues its goal by scrutinizing the very practice of judicial review of congressional acts. First, each branch has its own separate duty and power to interpret and abide by the Constitution. Second, the text and history of section five make clear the vigorous power granted to Congress to enforce the Fourteenth Amendment in particular. There is a serious loss of integrity and transparency involved in relying instead on strained readings of the Commerce Clause. “Guarantees for personal liberty and safety and prohibitions against invidious class discrimination are subtly degraded and dehumanized when based upon or measured by the laws of trade and commerce” (p.131). Glidden makes valid points about the long-term merits of Congress’s civil rights record, compared to that of the courts. He offers a long list of modern laws, including the Gun-Free School Zones Act and the Violence Against Women Act, both struck down by the Court under narrowed readings of the Commerce Clause. All these laws, in his view, could and should have been founded on section five, since they protect people from harms covered by the Fourteenth Amendment. (There is no discussion of the outer limits of this protection, bringing to mind Justice Scalia’s broccoli question in the Affordable Care Act case.)
Finally, Chapter Eight considers how the appropriate power of Congress might be restored. He offers a passionate vision of a Congress re-empowered and pressed by the people to protect fundamental rights, ignoring the fact that the most united, energetic faction in Congress today believes that federal government action is by far the largest threat to our rights. His first suggestion is that the Court employ the Political Questions Doctrine to abstain from reviewing laws founded on the Fourteenth Amendment. His second is that Congress utilize its power to regulate the jurisdictions of the federal courts. The first idea, to be blunt, makes no more sense than the Political Questions Doctrine itself (Hoffman 1997, chapter 1). The second is spelled out in a proposed statute, which, after stating Congress’s robust understanding of the Fourteenth Amendment, would provide that: “No law of Congress to enforce the Fourteenth Amendment shall be struck down by any court on the grounds that it regulates private conduct, prescribes standards for state conduct that differ from prior judicial interpretations, or constitutes what the court believes is either an unnecessary or unwise interference with states’ rights, or an unreasonable or unjust regulation of life, liberty, or property. The court may overturn a law on the basis that Congress has made a clear mistake in its treatment of life, liberty, or property. However, if Congress subsequently decides that the law did not make a mistake, it may enact the rule again to control future cases” (p.140). Glidden defends this proposal on the grounds that we are a republic, and Supreme Court decisions are not part of the Supreme Law referred to in Article VI. Five unelected judges should not have plenary power to strike down legislative judgments with which they disagree. In a footnote, he realistically concedes that enactment of such a law is highly unlikely, and that if it were enacted, the Court would probably strike it down or construe it very narrowly (p.150). 
This book has laudable, progressive intentions and demonstrates skilled historical research. It might be useful in courses on the Fourteenth Amendment, or as a case study in the applications of originalism. Those seeking a theory about the circumstances under which Congress or the courts, respectively, better protect civil rights and liberties need to look elsewhere.
Hoffman, Daniel. 1997. OUR ELUSIVE CONSTITUTION: SILENCES, PARADOXES, PRIORITIES. Albany, NY: SUNY Press.
CITY OF BOERNE V. FLORES 521 U.S. 507 (1997).
CIVIL RIGHTS CASES 109 U.S. 3 (1883).
CORFIELD V. CORYELL 6 Fed. Cas. 546 (CCED Pa. 1823).
SLAUGHTERHOUSE CASES 83 U.S. (16 Wall.) 36 (1873).
Copyright 2014 by the Author, Daniel Hoffman.