Outside Publication

Fixing Fourteenth Amendment Enforcement Power: An Argument for a Rebuttable Presumption in Favor of Congressional Abrogation of State Sovereign Immunity, Boston University Law Review, Vol. 94

July 2014

The Fourteenth Amendment, ratified in the wake of the Civil War, was a federal effort to protect newly freed slaves from states attempting to deprive them of the “due process of law” or the “equal protection of the laws.”

Congress specifically reserved itself powers to enforce these rights through Section 5 of the Fourteenth Amendment. One can imagine that Congress in the 1860s did not predict that the expansive protections of the Fourteenth Amendment would be applied over the next 150 years to women, same-sex intimate behavior, the developmentally disabled, and even hippies, to name just a few categories. Yet, as the Fourteenth Amendment has evolved over time, more and more groups and activities have benefited from its protections.

Read the full article >>