State Action and Congressional Enforcement of the Reconstruction Amendments
Key Takeaways
- The Constitution's individual-rights guarantees generally restrain only government, not private parties — there must be 'state action.'
- Private conduct becomes state action under (1) the public-function exception or (2) significant state involvement/entanglement.
- Section 5 of the Fourteenth Amendment lets Congress enact remedial legislation that is 'congruent and proportional' to judicially recognized constitutional violations (City of Boerne v. Flores).
- Congress may not use Section 5 to create new substantive rights or to redefine the scope of constitutional guarantees.
- The Thirteenth Amendment reaches private racial discrimination directly because it bans slavery and its 'badges and incidents,' requiring no state action.
The State-Action Requirement
The Bill of Rights and the Fourteenth Amendment restrain government, not private individuals. A purely private actor who discriminates or censors generally does not violate the Constitution (though a statute may forbid the conduct). The threshold question in any individual-rights essay is therefore: is there state action? The exceptions to the 'private conduct is immune' rule fall into two categories.
1. Public-function exception. When a private entity performs a function traditionally and exclusively reserved to the state, it is treated as a state actor. Marsh v. Alabama held a company-owned town subject to the First Amendment because it functioned as a municipality. Running elections (Terry v. Adams — the 'white primary') is a public function. But note how exclusive the function must be: in Manhattan Community Access Corp. v. Halleck (2019), operating a public-access cable channel was not a traditional, exclusive public function, so the private operator was not a state actor.
Running a shopping center, a private school, or a utility is generally not an exclusive public function.
2. Significant state involvement (entanglement). Private conduct becomes state action when the government is so entangled with it that the state is responsible. Examples: a state court's judicial enforcement of a racially restrictive covenant (Shelley v. Kraemer); a restaurant leasing space in a state-owned parking garage and benefiting from the symbiotic relationship (Burton v. Wilmington Parking Authority); and government command, encouragement, or significant subsidy of the challenged discrimination.
Mere licensing, regulation, or funding, without more, is usually insufficient (Moose Lodge v. Irvis — a state liquor license did not convert a private club's discrimination into state action).
A privately owned company that operates the only cable public-access channels in a city excludes a producer because of the political content of his program. The producer sues, claiming a First Amendment violation. What is the likely outcome?
Section 5 of the Fourteenth Amendment: Congruence and Proportionality
Section 5 grants Congress power to 'enforce, by appropriate legislation,' the Fourteenth Amendment's guarantees. Congress's enforcement power is remedial: it may enact laws that prevent or remedy violations of rights as the courts have defined them, but it may not independently expand or redefine those rights.
The governing test comes from City of Boerne v. Flores (1997): Section 5 legislation must exhibit 'congruence and proportionality' between the injury to be prevented and the means adopted. In Boerne, the Religious Freedom Restoration Act, as applied to the states, exceeded Section 5 because it effectively created a new substantive standard of religious-liberty protection broader than the Court's own Free Exercise doctrine — there was no record of widespread constitutional violations to justify such sweeping prophylactic legislation.
Applications of the congruence-and-proportionality test:
| Statute | Result under Section 5 |
|---|---|
| RFRA applied to states (Boerne) | Invalid — created new rights, not congruent/proportional |
| Patent-infringement abrogation (Florida Prepaid) | Invalid — no pattern of constitutional violations |
| ADA Title I employment, states (Garrett) | Invalid abrogation — disability gets only rational-basis review, so little to remedy |
| FMLA family-leave provision (Hibbs) | Valid — targeted gender discrimination subject to heightened scrutiny |
| ADA Title II, courthouse access (Lane) | Valid as applied — remedied denial of fundamental right of court access |
The pattern: Section 5 abrogation succeeds where Congress targets discrimination that already triggers heightened scrutiny (race, gender) or a fundamental right, and fails where the underlying classification gets only rational basis.
The Thirteenth Amendment and Private Discrimination
The Thirteenth Amendment is unique: it abolishes slavery and involuntary servitude and, by its terms, reaches private conduct directly — it contains no state-action requirement. Under Section 2, Congress may legislate against the 'badges and incidents of slavery.' In Jones v. Alfred H. Mayer Co. (1968), the Court upheld a federal statute barring private racial discrimination in the sale and rental of property as a permissible effort to eliminate the badges and incidents of slavery.
Thus, when an exam problem involves private racial discrimination and asks for the source of congressional power, the Thirteenth Amendment is the answer that needs no state action.
Contrast the Fifteenth Amendment, which bars race-based denial of the vote and, like the Fourteenth, requires state action but lets Congress enforce voting protections. And recall that for commerce-based civil-rights statutes, the Commerce Clause supplied the authority that the Civil Rights Cases had denied under the Fourteenth Amendment — Heart of Atlanta Motel v. United States and Katzenbach v. McClung upheld the public-accommodations provisions of the 1964 Civil Rights Act as commerce regulation.
So three distinct sources can reach private discrimination: the Thirteenth Amendment (race, no state action), the Commerce Clause (activities affecting commerce), and the Spending Clause (conditions on federal funds). The Fourteenth and Fifteenth Amendments require state action.
Congress wants to prohibit private homeowners from refusing to sell their houses to buyers because of the buyers' race. Which constitutional provision most directly supports this legislation without any state-action requirement?
Sequencing State Action and Enforcement Power on the Exam
State action and enforcement power are the gateway issues that an examiner buries inside a rights problem, and missing them is fatal. Two disciplined moves keep you on track. First, whenever a constitutional rights claim is asserted against a defendant that might be private — a company, club, nonprofit, school, or individual — pause and run the state-action analysis before reaching the merits.
Ask whether the actor performs a traditional and exclusive public function (rare: elections, running a town) or is significantly entangled with the state (judicial enforcement of private discrimination, leasing public property in a symbiotic relationship, or the state's command/encouragement of the conduct). If neither applies, the constitutional claim fails outright and the only remedy lies in statutes, not the Constitution.
Second, when the question concerns Congress's power to legislate against discrimination, identify the source and match it to the right test. If the target is a state actor violating the Fourteenth Amendment, Congress legislates under Section 5 subject to Boerne's congruence-and-proportionality requirement, and abrogation of state sovereign immunity is valid only here. If the target is private racial discrimination, the Thirteenth Amendment (no state action needed) and the Commerce Clause are the workhorses, with the Spending Clause available to attach conditions to federal funds.
A clean answer names the clause, states whether state action is required, and applies the matching standard — congruence and proportionality for Section 5, badges-and-incidents for the Thirteenth, substantial-effects for commerce.