Normative History and Congress's Enforcement Power Under the Reconstruction Amendments

Publication Date

Fall 2016

Document Type



As an originalist matter, what degree of logistical power did the Framers of the Reconstruction Amendments want Congress to have in actualizing the substantive guarantees of those amendments? In the 1990s the Court, seeking to revive its federalism vigilance, answered: "relatively limited power." Scholars pounced, and it quickly became "settled" in the scholarly literature that the Court had misread the historical record regarding the Framers' intent. Despite the scholarly reactions, the Roberts Court has carried the Rehnquist Court's torch on this interpretative matter. As such, strident accusations of conservative judicial activism toward the Roberts Court have paralleled the charges leveled at the Rehnquist Court since the 1990s. The scholars who claimed to settle the underlying issue via an originalist analysis of historical evidence are very respected scholars, and rightly so. However, this article constructively complicates things by highlighting that, when one takes a critical look at the very evidence these scholars invoked to "settle" the matter, the certitude of said scholars on the subject has been grossly unwarranted. That certitude has nevertheless spawned a vicious cycle of citation to a few scholarly works that, in turn, do not do justice to the complexity of the evidence. This, in turn, has bred within the scholarly climate an unwarranted and often shrill intolerance for judicial invocations of state sovereignty in cases implicating the Reconstruction Amendments. The goal here is to, by highlighting the relevant complexities, tame this shrillness and call for greater intellectual empathy toward (even if not agreement with) judicial sensitivity to federalism concerns

Publication Title

Texas Review of Law and Politics