Saturday, January 14, 2006

Badges and incidents of citizenship

I have a stupid question. The 13th has been used to empower congress to stop all sorts of only distantly slave-related abuses because of the "badges and incidents" phrase and the empowering clause. (See Jones v. Mayer). The 14th should be the same way, Amar says, because the empowering clause reads the same, and so congress should be able to define rights in tandem with the courts, protecting the "badges and incidents of citizenship". (Although to make the analogy better, it should be "of uncitizenship", since slavery is bad and citizenship is good.)

But it doesn't matter that the empowering clauses read the same, right? There's no "badges and incidents" phrase in the substantive sections of 14. He explicitly wants to inject a badges-incidents power into the 14th by a broad reading of the empowering clause--he wants to use a necessary-proper-type clause to generate a new enumerated power. Hmm.

Also, he argues that the empowering clause uses the word "enforce" (Congress can enforce...), and so congress should be a co-enforcer with judges. But isn't to enforce more like applying rules laid down by others? For example, in Powell v. McCormack, Powell has to go after the enforcer of the rules (the sgt-at-arms) rather than the authorizer of the rules (the Speaker of the House), because of the Speech clause. And when we speak of cops enforcing the law, we don't mean they have a definitional power of crime, right?

I don't know where I stand on all this. I don't really like Boerne or Oregon v. Smith or even, really, the majority opinion in Katzenbach v. Morgan (Harlan has good arguments to my ear). Who knows. Anyway, Intratextualism, 112 Harv. L. Rev. 747 , 822 (1999), has a lot on these subjects.


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