The Union as It Wasn’t and the Constitution as It Isn’t: Section Five and Altering the Balance of Powers

Akron Law Review, Vol. 42, p. 1081, 2009

U of Akron Legal Studies Research Paper No. 08-12

31 Pages Posted: 11 Jun 2009 Last revised: 29 Jan 2010

Date Written: June 9, 2009


In addition to its well-recognized changes to individual rights and federal-state powers, the Fourteenth Amendment also effectuated a change, practically and ideologically, in the former balance among the three branches of national power. The framers created both a Union that had not yet been fashioned, and a Constitution that is dramatically different in where and how it strikes the balance of power on behalf of liberty. This article argues that in reconstituting that Union, the 39th Congress and the Fourteenth Amendment, of necessity and by understanding, recast the original structural alignment of national powers and the boundaries of their respective spheres. Recent decisions have revitalized scholarship on the original and historical meaning of the Section Five grant of power. This article aims to contribute to that conversation by looking at historical, philosophical, legal and pragmatic sources to illuminate the purposes of the amendment with respect to the balancing the powers among the respective spheres of the branches of national government.

Legal and political theory about the appropriate role of Congress with respect to identifying, protecting and enforcing personal liberties changed significantly from the time of the original framing in 1787 to the time of the framing of the Reconstruction Amendments. The original framers feared Congress as a potential predator on personal rights, and thus adopted a legal regime of enumerated powers, coupled with rights provisions to negate Congressional power. For the framers of the Fourteenth Amendment, Congress was seen as necessary to recognizing and enforcing rights, and was affirmatively granted a positive power to do so through the operation of Section Five. Consistent with Republican legal and political ideology of the time, the necessity of Congressional power and an affirmative grant of that power infused the amendment from its inception. Legal and political realities of the time support this reconception of Congress and significant grant of additional powers.

The framing of the Fourteenth Amendment proceeded at a time when the Executive was seen as affirmatively interfering with the work and goals of Reconstruction. The Supreme Court’s role in stripping Congress of any power to enforce rights was much on the minds of the framers of Section One and the empowerment clause of Section Five. Thus, Congress provided to itself the Constitutional power to protect rights and guard against misconstruction. Whether or not the framers focused upon the exact new parameters of relative powers, it cannot be denied that they did focus on the need to enhance Congressional powers. That enhancement, into arenas not before recognized as belonging to Congress, of necessity altered the balance among the national powers.

Keywords: Constitution, Fourteenth Amendment, Congressional powers, legal history

JEL Classification: K1

Suggested Citation

Reilly, Elizabeth A., The Union as It Wasn’t and the Constitution as It Isn’t: Section Five and Altering the Balance of Powers (June 9, 2009). Akron Law Review, Vol. 42, p. 1081, 2009, U of Akron Legal Studies Research Paper No. 08-12, Available at SSRN:

Elizabeth A. Reilly (Contact Author)

University of Akron - School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
330-972-6197 (Phone)

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