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Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J.1943-2059 (with Robert Post) (2003)


Because Section 5 of the Fourteenth Amendment vests in Congress "power to enforce, by appropriate legislation, the provisions of this article," the great rights contained in Section 1 of the Fourteenth Amendment are enforced by both Congress and the Court. How to conceive of the relationship between the legislative power established in Section 5 and the judicial power authorized by Section 1 is one of the deep puzzles of American constitutional law. This Article argues that Section 5 is a structural device that fosters the democratic legitimacy of our constitutional order. It links the legal interpretations of courts to the constitutional understandings of the American people, as expressed through their chosen representatives.

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