Katzenbach V. Morgan - The Supreme Court's Decision

The Supreme Court's Decision

By a 7-2 decision, the Supreme Court sided with Attorney General Nicholas Katzenbach, reversed the District Court, and held that Section 4(e) was constitutional. Writing the majority opinion, Justice Brennan stressed that Section 5 of the Fourteenth Amendment is "a positive grant of legislative power authorizing Congress to exercise its discretion in determining the need for and nature of legislation to secure Fourteenth Amendment guarantees." Justice Brennan applied the appropriateness standard of McCulloch v. Maryland (1819) to determine whether the legislation passed constitutional muster.

Section 4(e) arguably expanded rights beyond what the Court had recognized in Lassiter, but Justice Brennan ruled that Section 4(e) was appropriate. In doing so, Brennan has often been credited with introducing the "ratchet theory" for congressional legislation enacted under Section 5. The "ratchet theory" held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights. The "ratchet theory" essentially set judicially recognized rights as a support, on which Congress could expand if it so chose. According to this "ratchet" theory, Justice Brennan's opinion allowed for multiple interpreters of the Fourteenth Amendment, as opposed to just the judiciary.

In dissent, Justice Harlan criticized the "ratchet theory" and the idea of multiple interpreters of the Fourteenth Amendment. Justice Harlan relied on the separation of powers doctrine to argue that allowing Congress to interpret the Fourteenth Amendment undercut the power of the judiciary. Justice Harlan objected to Congress having the power to interpret the Fourteenth Amendment substantively (that is, to create new rights). Harlan argued that the appropriate use of Section 5 power was the enforcement of judicially recognized Fourteenth Amendment rights.