Section 5 of amendment 14

[Sigene]

I think this is different enough from the other threads related to the Insurrection section of amendment 14.

Why is section 5 essentially being ignored in this case: Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

With this wording, it seems that the individual states don’t have this power, but congress does.
It seems so obvious to me that I’m sure I’m missing something as to why this isn’t a key part of the conversation.

[silenus]

Because mentioning it removes the fantasy that it would ever work at the state level. That, and the fact that people can’t (or won’t) read.

[Northern_Piper]

The Supreme Court has fluctuated on the scope of section 5, which applies to all of the 14th Amendment, not just to section 3.

However, it appears that section 5 does not exclude state enforcement of the 14th Amendment, and does not give Congress sole authority to enforce the terms of the 14th Amendment.

From the 1873 Slaughter-House Cases:

In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation.

By this approach, Congress only has power under s.5 if a state doesn’t respect the terms of the 14th Amendment.

Slaughter-House Cases

The Wikipedia article on the 14th Amendment goes on to say:

However, in City of Boerne v. Flores (1997),[259] the Court narrowed Congress’s enforcement power, holding that Congress may not enact legislation under Section 5 that substantively defines or interprets Fourteenth Amendment rights.[253

Assuming that’s a fair summary, it seems to undercut the argument that s.3 has no force or effect unless defined by Congressional legislation.

Since s.5 applies to all of the 14th, it can’t have different scope depending on which section of the 14th is under consideration, I would think. If Congress can’t use s.5 to define terms under the civil rights sections of the 14th, seems difficult to see why Congress could use s.5 to define terms under s.3.

Fourteenth Amendment to the United States Constitution

[Sigene]

THanks for the extra information.

So, if I understand correctly, The states can enforce this amendment, but if they don’t then Congress can step in.

There is similar wording for a few other amendments as well. The assumption is that this thinking has been used for those amendments too.

[Saint_Cad]

@Sigene

With this wording, it seems that the individual states don’t have this power, but congress does.

I think even Mitchell agreed that states have this power for state offices. He raised the point that states do not have this power for Federal offices.

[Roderick_Femm]

@Sigene

The states can enforce this amendment, but if they don’t then Congress can step in.

I think it reads more like, the states can enforce this amendment, but Congress can step in and over-ride state enforcement with federal enforcement.

[Sigene]

well…I think my question has been answered

Supreme Court rules Trump can stay on Colorado ballot in historic 14th...

Supreme court unanimously says “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States,”