The reconstruction amendments were amendments passed directly following the civil war. These are the thirteenth, fourteenth, and fifteenth amendments designed to protect against slavery and other kinds of civil discrimination. Each of these amendments outline a behavior that is prohibited and then gives congress the power to enforce laws that meet those behavioral standards. One section in particular gives congress the authority to provide remedies to those affected by discriminatory laws. Under this authority, Congress can resolve complex issues that would take the court years to resolve on a case-by-case basis. Additionally, Congress can enforce laws to prevent behavior before it occurs under a rational basis test.

Katzenback v. Morgan

384 U.S. 641 (1966).


Does Congress have the authority to create a federal provision disavowing literacy tests to vote (under § 5 of the 14th Amendment).


If Congress can come up with a good reason, and reasoning, for the statute, then it would be constitutional (rational basis test).


Congress did come up with a sound reason. Therefore, the provision does not violate Congress’s power.


In 1959, the Court said that literacy tests did not violate the constitution. Congress responded in 1965 by passing the Voting Rights Act which contained a provision saying that states were not allowed to enforce literacy tests for voting privileges. The purpose of the statute was so Puerto Ricans in New York would be able to vote.


If Congress has a need and a basis to pass statutes to meet that need, then it would be constitutional. Here, there is a need for a Puerto Rican minority to have the opportunity to vote. Congress could have established that need by questioning whether state literacy requirements are prejudiced, whether the denial of the right to vote was a good way to encourage individuals to learn English, and third, that those who speak Spanish are still able to be politically informed through Spanish outlets.

Thus, the court reasoned that there was a need to protect against literacy tests and there was a rational basis for doing so.

The dissent argues against the rational basis test. A big issue for the dissent is that this opinion gives Congress the authority to override previous Supreme Court decisions simply because they were able to find a rational reason to do so. As such, the dissent argues that authority is irrational (creating a substantive scope of the Fourteenth Amendment). As for the rational basis adopted by the Court, there was no data showing that Spanish-speaking citizens have just as much aches to voting information as English-speaking citizens and that this exceeded Congress’s remedial power in § 5.

Thus, the dissent’s fear is that rational basis will be used to override both State and Court authority over constitutional issues.

Additional Notes
South Carolina v. Katzenbach, 383 U.S. 201 (1966)

The issue in S.C. v. Katzenbach is whether the federal government could restrict states from creating literacy tests before people could vote. § 5 of Amendment 14 allows the government to enforce provisions. Thus, the federal government created a law that issued a formula. The formula looked at states that issued literacy tests and had very low voter turnout among minorities. If the state met the formula, the state would have to get permission for any changes in poll locations or literacy tests.

Even though this seems a breach of federalism, it was allowed through the 14th amendment. The main point is that the law is upheld.

Case Notes

The Supreme Court had once said that literacy tests are alright as long as they were not racist. In this case, the literacy test was to ensure that voters were competent before voting (and to ensure that there was an incentive to learn English). However, the Voting Rights Act was passed which restricted the use of literacy tests.

In this case, the court says that Congress is better informed than the courts and therefore has greater authority to create rules on the issue.

The dissent argues that there is a separation of powers issue here. For example, if Congress has the authority to increase the rights through a rational basis, then Congress could also use a rational basis to dilute those powers (but see a footnote referring to the one way ratchet, Congress cannot decrease rights, only increase). As such, it is the responsibility of the courts to interpret the Constitutionality of a law, not Congress (referring to why the Voting Rights Act was passed).

There are two main reasons why the court allows this law to stand:

  1. To provide a remedy for arguable violations
  2. Congress can make substantive interpretations that goes beyond the Court’s authority.

Note: Later, in Shelby, the court struck down the formula in S.C. v. Katzenbach.

City of Boerne v. Flores

521 U.S. 507 (1997).

Flores is citing protection under the Religious Freedom Restoration Act (RFRA) while the city is challenging the Act.


Is the RFRA a valid exercise of Congressional authority?


Congressional authority under § 5 of the Fourteenth Amendment extends only to that Amendment.


The Act is not a proper exercise of Congressional power.


Once upon a time, there was a Native American tribe that ingested a drug as part of a sacramental ritual. The use of the drug was a violation of Oregon state law. When the issue was brought to the court, SCOTUS found in favor of the state law and did not provide a religious exception.

In response, Congress created legislation designed to refute the decision by the Supreme Court. Consequently, the RFRA was created which requires governmental bodies to have a compelling reason with the least restrictive means of enforcement. In other words, any Court challenge needs to use strict scrutiny to invalidate a law.


The court rejects the RFRA because it exceeds Congressional power. First, Congress is not allowed to rewrite the Constitution by an act. Because the Act was an attempt to rewrite the courts constitutional interpretation, Congress exceeded its authority. Additionally, there must be a connection between the proportionality of the injury and the desired remedy for § 5 to take affect. Because there is no connection here, the Act is not a proper exercise of authority.

Additional Notes

The point of the RFRA was to say if a law was passed that burdened religion, then the courts would look at those laws with strict scrutiny.

The proponents of RFRA argue that this broadened the rights of religion, falling into line with Katzenbach v. Morgan. However, the court disagrees. A big reason for the disagree gives congress the power to enforce the Constitution, not interpret the Constitution. As such, Congress is not allowed to rewrite the Constitution.

So, the court gives a two part test to determine if § 5 authority applies:

  1. Congruence, and
  2. Proportionality

The RFRA here failed this test because the amount of § 5 needs to be proportional to the problem. This is not proportional because the RFRA was a nationwide law without any evidence of broad religious discrimination. Compare this to Morgan, where the law was narrow, with discrimination going to minorities in the area.


  1. Changing v. defining the Constitution (Congress can only define, not change)
  2. Congruence and proportionality test

The Eleventh Amendment

A plain reading of the eleventh amendment says that a citizens cannot bring suit against a State (e.g. Iowan cannot sue Iowa, Iowan cannot sue Utah, etc.). However, this has not been the case. There are four exceptions to this rule (legal fictions):

  1. Individual Capacity – Civil Rights lawsuits (Most common)
    • Bring the complaint, name the person who violated the rights in their individual capacity ( individual capacity is the legal fiction). If they are sued in their official capacity, this would be a violation of the 11th Amendment.
  2. State Consent
    • Sometimes states will consent to being sued.
  3. Abrogation (nullification)
    • If you sue a person under section 5 of the 14th Amendment, then the 11th Amendment does not apply. This is the only provision that abrogates another Amendment. The reasons why is because it came after the 11th Amendment and the plaintiff is a suspect class.
    • Once upon a time, you could sue a state under the Commerce Clause, but this option was removed with Seminole Tribe of Florida v. Florida.
  4.  Injunctions
    • Note that you can sue for injunctive relief, but not financial relief. In other words, you can sue the state to stop the government from engaging in alleged illegal activity.

See Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003) (holding that gender is a suspected class and that through § 5 of 14th Amendment abrogates the 11th Amendment and the suit can continue).


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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