Congressional power of enforcement

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A Congressional power of enforcement is included in a number of amendments to the United States Constitution. The language "The Congress shall have power to enforce this article by appropriate legislation" is used, with slight variations, in Amendments XIII, XIV, XV, XVIII, XIX, XXIII, XXIV, and XXVI. The variations in the pertinent language are as follows: the Thirteenth Amendment leaves out the word "the", the Fourteenth Amendment states "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." and the Eighteenth Amendment states "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Initial creation and use

These provisions made their first appearance in the Thirteenth, Fourteenth and Fifteenth Amendments, which were adopted during the Reconstruction period primarily to abolish slavery and protect the rights of the newly emancipated African-Americans. The enforcement provisions contained in these amendments extend the powers of Congress originally enumerated in Article One, Section 8 of the Constitution, and have the effect of increasing the power of Congress and diminishing that of the individual states. They led to the "Enforcement Acts" of 1870 and 1871.

Use in the courts

Interpretation of the Fourteenth Amendment's enforcement provision has been the subject of several important Supreme Court cases, which reflect the tension between the Courts' role of interpreting the Constitution and Congress's power of adopting legislation to enforce specific Constitutional amendments.

Early on, in the so-called Civil Rights Cases decided in 1883, the Supreme Court concluded that the Congressional enforcement power in Section 5 of the Fourteenth Amendment did not authorize Congress use the Privileges or Immunities Clause of that amendment to ban racial discrimination in public accommodations operated by private persons, such as inns and theaters. The Court stated that since the Fourteenth Amendment only restricted state action, Congress lacked power under this amendment to forbid discrimination that was not sponsored by the state. This ruling has not been overturned, however, in modern times, similar civil rights legislation has been upheld under Congress's power to regulate interstate commerce under Article One, Section 8 of the Constitution. See Civil Rights Act of 1964.

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