This Article addresses the quality of the Supreme Court's historical argument in interpreting Section Five of the Fourteenth Amendment in the 1997 case City of Boerne v. Flores. The Boerne Court referred to three historical moments relevant to understanding the meaning of Section Five. Namely, Congress's consideration of an early version of the Fourteenth Amendment in late 1865 and early 1866, the congressional debate on the Fourteenth Amendment from April to June of 1866, and the discussion of the Ku Klux Klan Act in 1871. Ultimately, the Court made several fundamental errors in discussing the history of the ratification of Section Five. The Court's narrow construction of Congress's authority under Section Five can therefore not be justified by the history of the Fourteenth Amendment.
Ruth Colker, The Supreme Court's Historical Errors in City of Boerne V Flores, 43 B.C.L. Rev. 783 (2002), http://lawdigitalcommons.bc.edu/bclr/vol43/iss4/1