Congress doesn’t like when limitations are placed on its powers, whether we are talking about an Article I grant or authority granted by a Reconstruction Amendment (13th, 14th, or 15th). The rationales for limitations on the former and latter are viewed differently.

The Supreme Court’s policing of the enumerated powers doctrine, unless there is a First Amendment interest, borders on rationality (if not so called). So long as Congress gives a good reason (jurisdictional hook) for a law, its constitutional. Those were the defects in Lopez and Morrison. Even in a case like NFIB, the 5-member majority found that there was no commerce to regulate, so the clause didn’t apply. Over the last two decades or so, the Court’s policing of Reconstruction powers doctrine, has been much more stringent. Words like “congruence and proportionality” by themselves don’t mean much, and were hitherto unknown before the Rehnquist Court.

Let’s view “congruence and proportionality” as another word for scrutiny. The Court has backed off of Warren-Court precedents that apply rational basis review to the Reconstruction Amendments (See e.g. South Carolina v. Katzenbach), and have asked for some kind of means-ends fit. More specifically, the application of federal power must be proportional to the end being addressed. Nothing new so far.

Should we view the limitations on Article I grants and Reconstruction grants differently? Allow me to answer that question with another question. Why does the Court limit both of these powers? As I alluded to in this post, the answer is Federalism. Consider the Chief’s opinion for the Court in NFIB:

“State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992) (internal quotation marks omitted). Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a dis- tant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison). The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9–10).

Federalism is not merely a means of preserving the relationship between the federal and state government. Federalism is an important structural protection to ensure that the states stand as bulwarks to preserve that freedom. The Tenth Amendment is not the only safeguard to ensure this dynamic is preserved. It is the overall structure of the Constitution.

Look no further than Justice Kennedy’s dissenting statements in NFIB.  From Chapter 8 of Unprecedented, where I explore “Judgment Day”:

Everyone in the courtroom remained stunned. Totally oblivious to the commotion brewing outside the Court, the justice continued.

Kennedy paused for emphasis, then continued to read, very slowly. “Structure means liberty, for without structure, there are insufficient means to hold to account a central government that exceeds its powers in controlling the lives of its citizens. Today’s decisions should have vindicated, not ignored, these precepts. For these reasons, we would find the act invalid in its entirety.”

Kennedy was done.

Structure means liberty. In addition to the 10th Amendment (the easy answer), among these guides are the doctrine of enumerated powers, which broadly reflects the view that Congress can’t do everything, no matter how important the goals are, and lacks a general police power. That, by itself, should be enough to justify limits on the Reconstruction powers. It wouldn’t make much sense if Congress had plenary powers according to the 14th Amendment to effect laws concerning race, but not plenary powers according to Art. I, s. 8 to effect laws concerning commerce. As the commerce clause has been reigned in, so have the Reconstruction Amendments.

Both are grants of power. Both are aimed at giving the Congress the power to solve problems that the state governments are incompetent to fix themselves. And both are limited. The scope of the limitations are up for debate. But asking if the means chosen are proportional to the ends being addressed does not seem that far out of line with how courts view other similar issues. To this, you may counter with Marshall in M’Culloch, “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” The word “appropriate” has to mean something. In fact, the word “appropriate” is right there in Section 5 of the 14th Amendment. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Does appropriate mean “rational”? Does appropriate mean “proportional”? I’ll leave that question asides. But the notion that the Reconstruction Amendments provide plenary grants doesn’t necessarily follow.