Document Type



As early as 1793, Congress exercised plenary legislative power and enacted statutes that enforced the constitutionally secured property rights of slaveholders in their slaves with civil remedies, including a civil fine and tort damages, and criminal penalties and made them applicable to anyone who interfered with the slave owner’s constitutional right to recover fugitive slaves. Congress also created an elaborate federal enforcement structure. The United States Supreme Court repeatedly upheld the constitutionality of these statutes and Congress's plenary power to enact them. After the Civil War, the framers of the Fourteenth Amendment used these legislative and judicial precedents to insist that Congress possessed as much legislative power to enforce the constitutional rights of all Americans that earlier Congresses had exercised to enforce the constitutional rights of slaveholders. This article shows that, acting on this view, the framers of the Fourteenth Amendment actually exercised plenary legislative power when they enacted the Civil Rights Act of 1866, which they modeled on the antebellum legislation by incorporating their civil and criminal remedies and enforcement provisions. The article also shows that, to ensure the constitutionality of the Civil Rights Act and to protect it from being repealed by a future Congress, the framers explicitly incorporated it into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the power to define and enforce substantive constitutional rights the Rehnquist Court claims the framers intended to exclude from Congress. The framers adopted the remedies to redress violations of substantive constitutional rights the Court says the framers intended to reserve exclusively to the states. And, they expressly intended the Fourteenth Amendment to delegate to Congress the constitutional authority they had just exercised to define and enforce substantive constitutional rights, to define civil and criminal violations of constitutional rights, and to provide civil and criminal remedies to redress their violation.

This article demonstrates that the Rehnquist Court’s recent decisions interpreting Congress's Fourteenth Amendment power to enforce constitutional rights, which are based on the framers' intent, are contradicted by the framers' legislative actions to secure constitutional rights. It argues that the Rehnquist Court's understanding of Congress's power to secure constitutional rights is contradicted by the federal government's actions to enforce constitutional rights from the founding of the nation through the Civil War era, and it should be reevaluated.

Date of Authorship for this Version

April 2005


"plenary legislative power", "Fourteenth Amendment", fugitive slaves, slave owner, slaveholder, "framers' intent", "Rehnquist Court", Civil Rights Act, Civil War