76 CHAPTER 3|FEDERALISM
Congress’s reach. One technique has been to require that Congress provide an
unambiguous statement of its intent to overrule state authority when issuing leg-
islation that does so. Moreover, a potentially far-reaching decision in 2011 said
that individuals, as well as states, have the right to challenge the constitutionality
of a federal law under the Tenth Amendment. The case involved a woman who was
trying to hurt her husband’s lover with dangerous chemicals and was prosecuted
under a federal law aimed at attempting to limit the spread of chemical weapons.^28
This ruling, which supported the woman’s right to sue the federal government,
opens a new path of potential challenges to congressional limitations on state
power.THE FOURTEENTH AMENDMENT
The Fourteenth Amendment was intended to give the national government con-
trol over the potentially discriminatory laws of southern states after the Civil
War. Section 1 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 the “equal protection of the laws.” Section 5 empowers Congress “to
enforce” those guarantees by “appropriate legislation.”
The Supreme Court narrowly interpreted the Fourteenth Amendment in
the late nineteenth century, severely limiting Congress’s ability to affect state
policy. However, throughout most of the twentieth century the Court inter-
preted Section 5 to give Congress broad discretion to pass legislation to rem-
edy bad state laws. For example, discriminatory application of literacy tests
prevented millions of African Americans from voting in the South before Con-
gress passed the Voting Rights Act in 1965. As part of the federalism revolution
of the 1990s, the Court started to chip away at Congress’s Fourteenth Amend-
ment powers.
An important case in 1997 established a new standard to justify remedial
legislation—national legislation that fi xes discriminatory state law—under
Section 5, saying, “There must be a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.”^29 In one
application of the new standard, the Court struck down the portion of the Ameri-
cans with Disabilities Act (ADA) that applied to the states. Passed in 1990, the
ADA required employers, including state agencies, to make “reasonable accom-
modations” for a “qualifi ed individual with a disability.” However, the majority
opinion said that states could refuse to hire people in wheelchairs, or deaf or blind
people, as “States are not required... to make special accommodations for the
disabled.”^30 Three years later the Court made a narrow exception
to this ruling, saying that states did need to provide access for the
disabled to courthouses.^31
In another exception to the federalism revolution, the Court
upheld Congress’s power to apply the 1993 Family Leave Act to
state employees as “appropriate legislation” under Section 5 of the
Fourteenth Amendment.^32 The key diff erence between this case
and the disability case is that in passing the Family Leave Act,
Congress recognized the gender inequality of family care: when
a family member gets sick, the mother or wife typically bears the
burden. Constitutional protections for discrimination based on
disability are much weaker than those for discrimination based
on gender. (For a summary of recent important Court decisions on
federalism, see Table 3.2.)remedial legislation National
laws that address discriminatory
state laws. Authority for such
legislation comes from Section 5 of
the Fourteenth Amendment.
THE AMERICANS WITH DISABILITIES
Act of 1990 requires that public
accommodations and commercial
facilities be handicapped
accessible, and recent Supreme
Court rulings have held that the
law applies to state and local
government buildings. Disabled
activists are shown in front of the
White House lobbying for stronger
legislation.