No. 95-2074

CITY OF BOERNE, PETITIONER

v.

P. F. FLORES, ARCHBISHOP OF SAN ANTONIO,

AND UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Syllabus

No. 95-2074. Argued February 19, 1997 - Decided June 25, 1997

Respondent, the Catholic Archbishop of San Antonio, applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit, relying on an ordinance governing historic preservation in a district which, they argued, included the church, the Archbishop brought this suit challenging the permit denial under, inner alia, the Religious Freedom Restoration Act of 1993 (RFRA). The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal, and the Fifth Circuit reversed, finding RFRA to be constitutional.

Held: RFRA exceeds Congress' power.

a. Congress enacted RFRA in direct response to Employment Div., Dept, of Human resources of Ore v. Smith, 494 U.S. 872, in which the court upheld against a free exercise challenge a state law of general applicability criminalizing peyote use, as applied to deny unemployment benefits to Native American Church members who lost their jobs because of such use. In so ruling, the Court decided to apply the balancing test of Sherbert v. Verner, 374 U.S. 398, which asks whether the law at issue substantially burdens a religious practice and, if so, whether the burden is justified by a compelling government interest. RFRA prohibits "(g)overnment" from "substantially burden(ing)" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest." 42 U.S.C. 2000bb-1. RFRA's mandate applies to any branch of Federal or State Government, to all officials, and to other persons acting under color of law. 2000bb-2(1). Its universal coverage includes "all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment]." 2000bb-3(a).

b. In imposing RFRA's requirements on the States, Congress relied on the Fourteenth Amendment, which, inter alia, guarantees that no State shall make or enforce any law depriving any person of "life, liberty, or property, without due process of law," or denying any person of the "equal protection of the laws," 1. And empowers Congress "to enforce" those guarantees by "appropriate legislation," 5. Respondent and the United States as amicus contend that RFRA is permissible enforcement legislation under 5. Although Congress certainly can enact legislation enforcing the constitutional right to the free exercise of religion, see, e.g., Cantwell v. Connecticut, 310 U.S. 295, 303, its 5 power "to enforce" is only preventive or "remedial," South Carolina v. Katzenback, 383 U.S. 301, 326. The Amendment's design and 5's text are inconsistent with any suggestion that Congress has the power to decree the substance of the Amendment's Clause's meaning cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. While the line between measures that remedy or prevent unconstitutional actions and measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. The need to distinguish between remedy and substance is supported by the Fourteenth Amendment's history and this Court's case law, see, e.g., Civil Rights Cases, 109 U.S. 3, 13-14, 15; Oregon v. Mitchall, 400 U.S. 112, 209, 296. The Amendment's design has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary, depriving Congress of any power to interpret and elaborate on its meaning by conferring self-executing substantive rights against the States, cf. Id., at 325, and thereby leaving the interpretive power with the Judiciary.

c. RFRA is not proper exercise of Congress' 5 enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal-state balance. An instructive comparison may be drawn between RFRA and the Voting Rights Act of 1965, provisions of which were upheld in Katzenbach, supra, and subsequent voting rights cases. In contrast to the record of widespread and persisting racial discrimination which confronted Congress and the Judiciary in those cases, RFRA's legislative record lacks examples of any instances of generally applicable laws passed because of religious bigotry in the past 40 years. Rather, the emphasis of the RFRA hearings was on laws like the one at issue that place incidental burdens on religion. It is difficult to maintain that such laws are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. RFRA's most serious shortcoming, however, lies in the fact that it is so out of proportion to a supposed remedial or preventive object, that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections, proscribing state conduct that the Fourteenth Amendment itself does not prohibit. Its sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. Its restrictions apply to every government agency and official, 2000bb-2(1), and to all statutory or other law, whether adopted before or after its enactment, 2000bb-3(a). It has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who claims a substantial burden on his or her free exercise of religion. Such a claim will often be difficult to contest. See Smith supra. At 887. Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest in the most demanding test known to constitutional law. 494 U.S., at 888. Furthermore, the least restrictive means requirement was not used in the pre-Smith jurisprudence RFRA purported to codify. All told, RFRA is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens, and is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion.

73 F. 3d 1352, reversed.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUEST, C. J., and STEVENS, THOMAS, and GINSBURG, JJ., joined, and in all but Part III-A-1 of which SCALLA, J., joined. STEVENS, J., filed a concurring opinion. SCALLA, J., filed an opinion concurring in part, in which STEVENS, J., joined. O'CONNOR, J., filed a dissenting opinion, in which BREYER, J., joined except as to a portion of Part I. SOUTER, J., and BREYER, J., filed dissenting opinions.


JUSTICE KENNEDY delivered the opinion of the Court*

A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. 2000bb et seq. The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress' power.


*JUSTICE SCALLA joins in all but Part III-A-1 of this opinion.

I


Situated on a hill in the city of Boerne, Texas some 28 miles northwest of San Antonio is St. Peter Catholic Church. Built is 1923. the church'. structure replicated the mission style of the region's earlier history. the church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses in order to meet the needs of the congregation the Arch. bishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.

A few months later the Boerne City Council passed an ordinance authorizing the city Historic Landmark Commission to prepare a preservation plan with proposed historic landmark "of districts Under the ordinance the Commission must preapprove construction affecting historic landmarks or buildings in a historic district.

Soon afterwards the Archbishop applied for a building permit so construction to enlarge the church could proceed City authorities relying on the ordinance end the designation of a historic district which they argued included the church, denied the application. The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas 577 F. Supp. 355 (1995)

The complaint contained various claims, but to this point the litigation has centered on RFRA "of the question of in constitutionality The Archbishop relied upon RFRA as one basis for relief from the refusal to issue the permit. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under 6 of the Fourteenth Amendment. The court certified its order for interlocutory appeal as the Fifth Circuit reversed finding RFRA to be constitutional 73 F. 3d 1352 (1996}. We granted certiorari 519 U.S. _ (1996), and now reverse.

II

Congress enacted RFRA in direct response to the Court's decision in Employment Div. It of Human Resources of Ore. v Smith as 1;. . 872 (1990) There we considered a Free Exercise Clause claim brought by members of the Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote.

Their practice was to ingest peyote for sacramental purposes and they challenged an Oregon statute of general applicability as which made use of the drug criminal. In evaluating the claim we declined to apply the balancing test set forth in Sherbert v. Verner 374 U. S. 398 (1963), under which we would have asked whether Oregon's prohibition substantially burdened a religious practice and if it did whether the burden was justified by a compelling government interest. We stated government's ability to enforce generally applicable prohibition of socially harmful conduct . . cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' . . . contradicts both constitutional tradition and common sense 494 U.S. at 885 (internal quotation marks and citation omitted).

The application of the Sherbert test the Smith decision explained, would have produced an anomaly in the law, a constitutional right to ignore neutral laws of genera applicability The anomaly would have been accentuated, the Court reasoned by the difficulty of determining whether a particular practice was central to an individual's religion. We explained, moreover, that it "is not within the Judicial ken to question the centrality of particular beliefs or practices to a faith or the validity of particular litigants' interpretations of those creeds.. 494 U.S., at 887 (internal quotation marks and citation omitted.)

The only instances where a neutral, generally applicable law had failed to past constitutional muster, the Smith Court noted, were cases in which other constitutional protections were at stake. H., Id., at 881-882. In Wisconsin v. Yoder, 406 U. S.. 205 (1972), for example, we invalidated Wisconsin's mandatory school-attendance law as applied to Amish parents who refused on religious Grounds to send their children to school. That case implicated not only the right to the free exercise of religion but also the right of parents to control their children's education.

The Smith decision acknowledged the Court had employed the Sherbert test in considering free exercise challenges to state unemployment compensation rules on three occasions where the balances had tipped in favor of the individual. See Sherbert, supra; Thomas v. Review Board of Indiana Employment Security Div., 450 U. S. 707 (1981); Holds v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987). Those cases, the Court explained stand for "the proposition that where the State has in place a system of individual exemptions" it may not refuse to extend that system to cases of religious hardship without compelling reason". 494 U. S., at 884 (internal quotation marks omitted). By contrast, where a general prohibition, such as Oregon's, is at issue, "the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to [free exercise] challenges". Id., at 885. Smith held that neutral generally applicable laws may be applied to religious practice even when not supported by a compelling governmental interest.

Four Members of the Court disagreed. They argued the law placed a substantial burden on the Native American Church members so that it could be upheld only it the law served a compelling state interest and was narrowly tailored to achieve that end. Id., at 894. JUSTICE O'CONNER concluded Oregon had satisfied the test, while Justice Blackmun, joined by Justice Brennan and Justice Marshall could see no compelling interest justifying the law's application to the members.

These points of constitutional interpretation were debated by Members of Congress in hearings and floor debates. Many criticized the Court's reasoning, and this disagreement resulted in the passage of RFRA. Congress announced:

"(1) [T]he framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured it's protection in the First Amendment to the Constitution;

"(2) laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

"(3) governments should not substantially burden religious exercise without compelling justification;

"(4) in Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

"(5) the compelling interest test as set forth in prior Federal Court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." 42 USC 2000bb(a).

The Act's stated purposes are:

"(1) to restore the compelling interest as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 202 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened by government." 2000bb(b).

RFRA prohibits "[g]overnment" from "substantially burden[ing]" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden"(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest; 2000bb-1. The Act's mandate applies to any "branch, department, agency, instrumentality, and official, (or other person acting under color of law), of the United States," as well as to any State, orsubdivision of a State." 2000bb-2(1), The Act's universal coverage is confirmed in 2000bb-3(a), under which RFRA "applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after (RFRA's enactment)." In accordance with RFRA usage of the term, we shall use "state law" to include local and municipal ordinances.

III
A

Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819); see also The Federalist No. 45, p. 292 (C. Rossiter ed. 1961)(J. Madison). The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that "the powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803).

Congress relied on its Fourteenth Amendment enforcement power in enacting the most far reaching and substantial of RFRA's provisions, those which impose its requirements on the States. See Religious Freedom Restoration Act of 1993, S. Rep. No. 103-111, pp. 13, 14 (1993) (Senate Report). H.R. Rep. No. 103-88, p.9 (1993) House Report). The Fourteenth Amendment provides, in part:

"Section 1 No State shall make or enforce any law which shall abridge the priveleges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The parties disagree over whether RFRA is a proper exercise of Congress' 5 power "to enforce" by "appropriate legislation" the constitutional guarantee that no state shall deprive any person of "life, liberty, or property without due process of law" nor deny any person ":equal protection of the laws."

In defense of the Act respondent contends, with support from the United States as amicus, that RFRA is permissible enforcement legislation. Congress, it is said, is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment's Due Process Clause, the free exercise of religion, beyond what is necessary under Smith. It is said the congressional decision to dispense with proof of deliberate or overt discrimination and instead concentrate on a law's effects accords with the settled understanding that 5 includes the power to enact legislation designed to prevent as well as remedy constitutional violations. It is further contended that Congress' 5 power is not limited to remedial or preventative legislation.

All must acknowledge that 5 is a "positive grant of legislative power" to Congress, Katzenbach v. Morgan, 384 U.S. 641, 651 (1966). In Ex Parte Virginia, 100 U.S. 339, 345-346 (1880), we explained the scope of Congress' 5 power in the following broad terms:

"Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons and enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power."

Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into "legislative spheres of autonomy previously reserved to the States." Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976). For example, the Court upheld a suspension of literacy tests and similar voting requirements under Congress' parallel power to enforce the provisions of the Fifteenth Amendment, see U.S. Const., Amdt. 15 2, as a measure to combat racial discrimination in voting, South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966), despite the facial constitutionality of the tests under Lassiter North Hampton County Bd. of Elections, 360 U.S. 45 (1959). We have also concluded that other measures protecting voting rights are within Congress' power to enforce the provisions of the fifteenth Amendment, despite the burdens those measures placed on the States. South Carolina v. Katzenbach, supra (upholding several provisions of the Voting Rights Act of 1965); Katzenbach v. Morgan, (upholding ban on literacy tests that prohibited certain people in Puerto Rico from voting); Oregon v. Mitchell, 400 U.S. 112 (12970) (upholding 5-year nationwide ban on literacy tests and similar voting requirements for registering to vote); City of Rome v. U.S., 446 U.S. 156, 161 (1980) (upholding 7-year extension of the Voting Rights Act's requirement that certain jurisdictions preclear any

page 3


change to a "standard, practice, or procedure with respect to voting"); see also James Everard's Breweries v. Day, 265 U.S. 545 (1924) (upholding ban on medical prescription of intoxicating malt liquors as appropriate to enforce Eighteenth Amendment ban on manufacture for beverage purposes).

It is also true, however, that "[a]s broad as the Congressional enforcement power is, it is not unlimited." Oregon v. Mitchell, supra, at 128 (opinion of Black J.) In assessing the breadth, of 5's enforcement power we begin with its text. Congress has been given the power "to enforce" the "provisions of this article". We agree with respondent, of course, that Congress can enact legislation under 5 enforcing the constitutional right to the free exercise of religion. The "provisions of this article", to which 5 refers, include the due process clause of the Fourteenth Amendment. Congress' power to enforce the free exercise clause follows from our holding in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), that the fundamental concept of liberty embodies in the Fourteenth Amendment's Due Process Clause embraces the liberties of the First Amendment." See also United States v. Price, 383 U.S. 787, 789 (1966) (there is no doubt of the power of Congress to enforce by appropriate criminal sanctions every right guaranteed by the Due Process Clause of the Fourteenth Amendment" 0 (internal quotation marks and citation omitted).

Congress' power under 5, however, extends only to enforcing the provisions of the Fourteenth Amendment. The Court has described this power as "remedial", South Carolina v. Katzenbach, supra, at 326. The design of the Amendment and the text of 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what that right is. It has been given the right to enforce, not the right to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the "provisions of [the Fourteenth Amendment]."

While the line between the measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruance and proportionality between the injury to be prevented and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. History and our case law support drawing the distinction, one apparent from the text of the Amendment.

IThe Fourteenth Amendment's history confirms the remedial, rather than substantive nature of the Enforcement Clause. The Joint Committee on Reconstruction of the 39th Congress began drafting what would become the Fourteenth Amendment in January, 1866. The objections to the Committee's first draft of the Amendment, and the rejection of the draft, have a direct bearing on the central issue of defining Congress' enforcement power. In February, Republican Representative John Bingham of Ohio reported the following draft amendment to the House of Representatives on behalf of the Joint Committee:

"The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States equal protection in the rights of life, liberty, and property." Cong. Globe, 39th Cong., 1st Sess., 1084 (1866).

The proposal encountered immediate opposition, which continued through three days of debate. Members of Congress from across the political spectrum criticized the Amendment, and the criticisms had a common theme: The proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure. Eg., id., at 1063-1065 (statement of Rep. Hale); id., at 1082 (statement of Sen. Stewart); id., at App. 133-135 (statement of Rep. Rogers). Democrats and conservative republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of State responsibility, a power inconsistent with the federal design central to the Constitution. Typifying these views, Rep. Hale of New York labeled the Amendment "an utter departure from every principle ever dreamed of by the men who framed our Constitution," id., at 1082; accord, id., at 1087 (statement by Rep. Davis); id., at App., 133 (statement of Rep. Rogers). Some radicals , like their brethren, "unwilling that Congress should have any such power" to establish uniform laws throughout the United States upon the protection of life, liberty and property," id., at 1095 (statement of Rep. Hotchkiss), also objected that giving Congress primary responsibility for enforcing legal equality would place power in the hands of the changing congressional majorities, Ibid. See generally, Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 57 (1955); Graham. Our "Declaratory" Fourteenth Amendment, 7 Stan. L. Rev. 3, 21 (1954).

As a result of these objections having been expressed from so many different quarters, the House voted to table the proposal until April. See e.g., B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 2125,217 (1914); Cong. Globe, 42d Cong., 1st Sess., App. 115 (1871) (statement of Rep. Farnsworth). The congressional action was seen as marking the defeat of the proposal. See The Nation, Mar. 8, 1866, p. 291 ("The postponement of the Amendmentis conclusive against the passage of [it]*); New York Times, Mar. 1, 1866, p. 4 ("It is doubtful if this ever comes before the House again"); see also Cong. Globe, 42d Cong., 1st Sess., App., at 115(statement of Rep. Farnsworth) (The Amendment was "given its quietus by a postponement for two months where it slept the sleep that knows no waking"). The measure was defeated "chiefly because many members of the legal profession s[aw] in it a dangerous centralization of power," The Nation, supra, at 291, and many leading republicans of the House [of Representatives] would not consent for so radical a change in the Constitution," Cong. Globe, 42d Cong., 1st Sess., App., at 151 (statement of Rep. Garfield). The Amendment in its early form was not again considered. Instead, the Joint Committee began drafting a new article of Amendment, which it reported to Congress on April 30, 1866.

Section 1 of the new draft Amendment imposed self-executing limits on the States. Section 5 prescribed that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article". See Cong. Globe, 39th Cong. 1st Sess., at 2286. Under the revised Amendment, Congress' power was no longer plenary, but remedial. Congress was granted the power to make the substantive prohibitions against the States effective. Representative Bingham said the new draft would give Congress "the power to protect by national law, the privileges and immunities of all the citizens of the Republic whenever the same shall be abridged or denied by the unconstitutional acts of any State." Id., at 2542. Representative Stevens described _______... correct the unjust legislation of the States." Id., at ___ enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment"). See generally, H. Brannon, The Rights and Privileges Guaranteed by the Fourteenth Amendment to the Constitution of the United States, 387 (1901)(Congress' powers are only prohibitive, corrective, vetoing, aimed only at undue process of law"); Id., at 420, 452-455 (same); T. Cooley, Constitutional Limitations 294, n.1 (2d Edition (1871) ("This Amendment of the Constitution does not concentrate power in the general government for any purpose of police government within the States; its object is to preclude legislation by any State which shall "abridge the privileges or immunities of citizens of the United States"). The Revised Amendment proposal did not raise the concerns expressed earlier regarding broad congressional power to prescribe uniform national laws with respect to life, liberty and property. See, e.g. Cong. Globe, 42d Cong., 1st Sess., at App. 151 (statement by Rep. Garfield) ["The Fourteenth Amendment"] limited but did not oust the jurisdiction of the States"). After revisions not relevant here, the new measure passed both Houses and was ratified in July 1968 as the Fourteenth Amendment.

The significance of the defeat of the Bingham proposal was apparent even then. During the debates over the Ku Klux Klan Act only a few years after the Amendment's ratification, Representative James Garfield argued there were limits on Congress' enforcement power, saying "unless we ignore both the history and the language of these clauses, we cannot, by any reasonable interpretation, give to [5] the force and effect of the rejected [Bingham] Clause." Cong. Globe, 42d Cong., 1st Sess., at App. 151; see also id., at App. 115-116 (statement of Rep. Farnsworth). Scholars of successive generations have agreed with this assessment. See H. Flack, The Adoption of the Fourteenth Amendment 64 (1908); Bickel, The Voting Rights Cases, 1966 Sup.Ct. Rev., 79, 97.

The design of the Fourteenth Amendment has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary. The first eight Amendments to the Constitution set forth self-executing prohibitions on government action, and this Court has had primary responsibility to interpret those prohibitions. The Bingham draft, some thought, departed from that tradition by vesting in Congress primary power to interpret and elaborate on the meaning of the new Amendment through legislation. Under it, "Congress, and not the Courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States." Flack, supra, at 64. While this separation of powers aspect did not occasion the widespread resistance which was caused by the proposal's threat to the federal balance, , it nonetheless attracted the attention of various members. See Cong. Globe, 39th Cong., 1st Sess., at 1064 (statement of Rep. Hale) (noting that Bill of Rights, unlike Bingham proposal, "provide safeguards to be enforced by the courts, and not to be exercised by the Legislature"); Id., at App. 133 (statement of Rep. Rogers) (prior to Bingham proposal , "provide safeguards to be enforced by the courts to enforce the privileges and immunities of the citizens"). (few words missing) substantive rights, which, like the provisions in South Carolina v. Katzenbach, 383 U.S. at 325 (discussing Fifteenth Amendment). The power to interpret the Constitution in a case or controversy remains in the Judiciary.

Continued