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The Morgan “Power” and the Forced Reconsideration of Constitutional Decisions, 53 University of Chicago Law Review 819 (1986)

Abstract

The Supreme Court's decisions on controversial issues invariably generate still greater controversy. Whatever romantic hopes the Framers might have had for the institution and the fate of its pronouncements, the reality is simple and somewhat sad: The Court's judgments on emotionally searing questions of constitutional law rarely settle them. Every celebrated decision seems to bring a celebrated condemnation of its immorality and a celebrated demand that it be overturned. Because amending the Constitution is practically impossible, altering federal court jurisdiction too controversial, and appointing new Justices an option rarely available, legislative circumvention and legislative override have become the strategies of choice for those who are disappointed with the Justices' conclusions. The most provocative and stimulating legislative proposals are often those possessing the most dubious claims to constitutionality. Into this category fall all those bills said to comprise exercises of the Morgan power.

The Morgan power derives its name and nearly all its rather ethereal substance from the Supreme Court's 1966 decision in Katzenbach v. Morgan. In that case, the Warren Court sustained the constitutionality of section 4(e) of the Voting Rights Act of 1965, a provision essentially barring the enforcement of New York's English literacy requirement against otherwise qualified voters who are educated in Puerto Rico. The result might have generated relatively little controversy but for the Court's conclusion seven years earlier in Lassiter v. Northampton County Board of Elections that literacy tests did not violate the fourteenth and fifteenth amendments absent some showing of discriminatory application. Was the Congress tacitly asserting the forbidden power to revise the Court's constitutional judgments by ordinary legislation? Not at all, the Court concluded. The congressional action, Justice Brennan explained for the Morgan majority, was valid as an exercise of its power under section 5 of the fourteenth amendment to enforce the amendment's provisions by "appropriate legislation." The majority cautioned, however, that the Congress has the power only to broaden the scope of fourteenth amendment rights, not to narrow it.

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1986

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