The Civil Rights Amendments (13th, 14th and 15th), which were passed after the Civil War each contain an enforcement clause empowering Congress to enforce the Amendments.

Each Amendment contains the following language: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

You studied these powers in Liberty, Equality and Due Process (LEDP). Below is a short recap to this set of powers.

The Civil War Amendments, the 13th, 14th and 15th Amendments, were designed to address the evils of slavery, racial inequality and discrimination.

The 13th Amendment prohibits slavery and involuntary servitude. The 14th Amendment establishes that all people born and naturalized in the United States are citizens and that no state can abridge the privileges and immunities of U.S. citizens. The Amendment also provides that no state may deprive any person of life, liberty, or property without due process of law or deny any person equal protection of the laws. The 15th Amendment states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

The 13th, 14th, and 15th Amendments do not require subsequent legislation to be directly
enforceable. Nonetheless, Congress has passed various forms of legislation under the Enforcement Clauses each of these Amendments.

These Amendments, and particularly section 5 of the 14th Amendment, serve as a basis on which Congress may abrogate 11th Amendment immunity.

It should be noted that the 13th Amendment applies to everyone, be they a state actor or a private person, while the letter of the 14th Amendment limits its application to the state.

The Court has interpreted the 13th Amendment enforcement provision to include not only slavery and indentured servitude, but also the badges and incidents of slavery. The Court was very deferential to Congress during the 1960s and 1970s and applied a rational basis test to Congress’s determination that it was addressing a badge or incident of slavery. This deferential approach to the Enforcement Clause of the 13th Amendment has not really been tested before the Supreme Court since the 70s and so it is somewhat difficult to predict how the present Court would address those powers.

The Court was also deferential to Congress during the 60s and 70s when it came to the 14th Amendment’s enforcement clause, but in keeping with the spirit of the 1990s (see Commerce Clause Powers), the Court became less deferential, holding that Congress cannot reinterpret rights or expand rights beyond the scope determined by the Supreme Court. In City of Boerne v. Flores (1997) the Court held that “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”

The test under the 15th Amendment enforcement clause was whether Congress had a rational basis for determining that the law was an appropriate mechanism for enforcing the Amendment. However, in the Court's recent decision, Shelby v. Holder (2013), it used the less deferential test of  “sufficiently related.” The use of this new test is due in part a finding that sections of the Voting Rights Act violated states equal sovereignty.

The Court, found that the section 4 list of jurisdictions that were required to get pre-clearance from federal government before they made changes to their voting procedures, was outdated, not justified by present conditions, and that it offended the equal sovereignty of states. Because the Act did not treat states equally, the Court required the disparate geographic coverage to be “sufficiently related to the problem” that was targeted. The Court found that it was not.