Amendment 14 — Who Congress May Regulate

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Fourteenth Amendment , Section 5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress has the discretion to adopt remedial measures, such as authorizing persons being denied their civil rights in state courts to remove their cases to federal courts,[1](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn1amd14 " Section 3 of the Civil Rights Act of 1866, 14 Stat. 27, 28 U.S.C. § 1443. See Virginia v. Rives, 100 U.S. 313, 318 (1880); Strauder v. West Virginia, 100 U.S. 303 (1880). The statute is of limited utility because of the interpretation placed on it almost from the beginning. Compare Georgia v. Rachel, 384 U.S. 780 (1966), with City of Greenwood v. Peacock, 384 U.S. 808 (1966). ") and to provide criminal[2](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn2amd14 " 18 U.S.C. §§ 241, 242. See Screws v. United States, 325 U.S. 91 (1945); Williams v. United States, 341 U.S. 97 (1951); United States v. Guest, 383 U.S. 745 (1966); United States v. Price, 383 U.S. 787 (1966); United States v. Johnson, 390 U.S. 563 (1968). ") and civil[3](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn3amd14 " 42 U.S.C. § 1983. See Monroe v. Pape, 365 U.S. 167 (1961); see also 42 U.S.C. § 1985(3), construed in Griffin v. Breckenridge, 403 U.S. 88 (1971). ") liability for state officials and agents[4](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn4amd14 " Ex parte Virginia, 100 U.S. 339 (1880). ") or persons associated with them[5](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn5amd14 " United States v. Price, 383 U.S. 787 (1966). ") who violate protected rights. These statutory measures designed to eliminate discrimination “under color of law” [6](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn6amd14 " Both 18 U.S.C. § 24 and 42 U.S.C. § 1983 contain language restricting application to deprivations under color of state law, whereas 18 U.S.C. § 241 lacks such language. The newest statute, 18 U.S.C. § 245, contains, of course, no such language. On the meaning of “custom” as used in the “under color of” phrase, see Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). ") lacks such language. The newest statute, 18 U.S.C. § 245, contains, of course, no such language. On the meaning of “custom” as used in the “under color of” phrase, see Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). present no problems of constitutional foundation, although there may well be other problems of application.[7](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn7amd14 " E.g., the problem of “specific intent” in Screws v. United States, 325 U.S. 91 (1945), and Williams v. United States, 341 U.S. 97 (1951), and the problem of what “right or privilege” is “secured” to a person by the Constitution and laws of the United States, which divided the Court in United States v. Williams, 341 U.S. 70 (1951), and which was resolved in United States v. Price, 383 U.S. 787 (1966). ") But the Reconstruction Congresses did not stop with statutory implementation of rights guaranteed against state infringement, moving as well against private interference.

Thus, in the Civil Rights Act of 1875[8](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn8amd14 " Civil Rights Act of 1875, 18 Stat. 335, §§ 1, 2. ") Congress had proscribed private racial discrimination in the admission to and use of inns, public conveyances, theaters, and other places of public amusement. The Civil Rights Cases[9](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn9amd14 " 109 U.S. 3 (1883). The Court also rejected the Thirteenth Amendment foundation for the statute, a foundation revived by Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). ") found this enactment to be beyond Congress’s power to enforce the Fourteenth Amendment . The Court observed that Section 1 prohibited only state action and did not reach private conduct. Therefore, Congress’s power under Section 5 to enforce Section 1 by appropriate legislation was held to be similarly limited. “It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment.” [10](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn10amd14 " 109 U.S. at 11. Justice John Harlan’s dissent reasoned that Congress had the power to protect rights secured by the Fourteenth Amendment against invasion by both state and private action, but also viewed places of public accommodation as serving a quasi-public function that satisfied the state action requirement in any event. Id. at 46–48, 56–57. ") The holding in this case had already been preceded by United States v. Cruikshank[11](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn11amd14 " 92 U.S. 542 (1876). The action was pursuant to § 6 of the 1870 Enforcement Act, ch. 114, 16 Stat. 140, the predecessor of 18 U.S.C. § 241. ") and by United States v. Harris[12](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn12amd14 " 106 U.S. 629 (1883). The case held unconstitutional a provision of § 2 of the 1871 Act, ch. 22, 17 Stat. 13. ") in which the Federal Government had prosecuted individuals for killing and injuring African Americans. The Amendment did not increase the power of the Federal Government vis-a-vis individuals, the Court held, only with regard to the states themselves.[13](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn13amd14 " See also Baldwin v. Franks, 120 U.S. 678 (1887); Hodges v. United States, 203 U.S. 1 (1906); United States v. Wheeler, 254 U.S. 281 (1920). Under the Fifteenth Amendment, see James v. Bowman, 190 U.S. 127 (1903). ")

Cruikshank did, however, recognize a small category of federal rights that Congress could protect against private deprivation, rights that the Court viewed as deriving particularly from one’s status as a citizen of the United States and that Congress had a general police power to protect.[14](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn14amd14 " United States v. Cruikshank, 92 U.S. 542, 552–53, 556 (1876). The rights that the Court assumed the United States could protect against private interference were the right to petition Congress for a redress of grievances and the right to vote free of interference on racial grounds in a federal election. ") These rights included the right to vote in federal elections, general and primary,[15](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn15amd14 " Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Classic, 313 U.S. 299 (1941). ") the right to federal protection while in the custody of federal officers,[16](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn16amd14 " Logan v. United States, 144 U.S. 263 (1892). ") and the right to inform federal officials of violations of federal law.[17](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn17amd14 " In re Quarles and Butler, 158 U.S. 532 (1895). See also United States v. Waddell, 112 U.S. 76 (1884) (right to homestead). ") The right of interstate travel is a basic right derived from the Federal Constitution, which Congress may protect.[18](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn18amd14 " United States v. Guest, 383 U.S. 745 (1966); Griffin v. Breckenridge, 403 U.S. 88 (1971). ") In United States v. Williams,[19](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn19amd14 " 341 U.S. 70 (1951). ") in the context of state action, the Court divided 4-4 over whether the predecessor of 18 U.S.C. § 241 in its reference to a “right or privilege secured . . . by the Constitution or laws of the United States” encompassed rights guaranteed by the Fourteenth Amendment , or was restricted to those rights “which Congress can beyond doubt constitutionally secure against interference by private individuals.” This issue was again reached in United States v. Price[20](https://www.law.cornell.edu/constitution-conan/amendment-14/who-congress-may-regulate#fn20amd14 "