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Article

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Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power (with Reva B. Siegel), 78 INDIANA LAW JOURNAL 1 (2003).

Abstract

"America is its Constitution."

In a recent string of decisions invalidating federal civil rights legislation, the Supreme Court has repeated the simple but powerful message: "The Constitution belongs to the courts." Beginning from the premise that Congress's "authority is limited to those powers enumerated in the Constitution, the decisions emphasize that it is the Court's special responsibility to mark where Congress "has exceeded its constitutional bounds." The Court has insisted that it must impose "judicially enforceable outer limits" on Congress's enumerated powers, even at the cost of considerable "legal uncertainty."

These decisions break with the judicial practice of the last half century, when the Court employed doctrines of deference to vindicate democratic values in constitutional interpretation, defining the scope of federal power in terms that gave great weight to Congress's judgments about the nation's needs and interests. No longer does the Court emphasize the respect due to the constitutional judgments of a coequal and democratically elected branch of government. Now it claims that only the judiciary can define the meaning of the Constitution.

These remarkable decisions reflect not only the objective of protecting states from an overreaching national government, which sounds in federalism, but also the distinct theme of separation of powers. At issue is the "cardinal rule of constitutional law" that "ever since Marbury this Court has remained the ultimate expositor of the constitutional text." The Court has been particularly skeptical of Congress's efforts to exercise its power under Section 5 of the Fourteenth Amendment "to enforce, by appropriate legislation, the provisions of this article." Congressional lawmaking under Section 5 raises especially knotty issues of separation of powers, because Section 5 legislation necessarily involves congressional judgments about the meaning of Section 1 of the Fourteenth Amendment.

The Rehnquist Court has increasingly come to regard Section 5 legislation as challenging the Court's ultimate authority to interpret the Fourteenth Amendment. In a series of cases that began with City of Boerne v. Flores in 1997, and that culminated two Terms ago in Board of Trustees of the University of Alabama v. Garrett, the Court has imposed ever more restrictive conditions on Congress's ability to exercise its Section 5 power. These restrictions reflect the Court's growing apprehension that Congress may be playing too large "a role in interpreting and applying the Constitution."' The decisions express with growing clarity the Court's claim to an exclusive authority to interpret the Constitution.

This article explores the understanding of the Constitution that underlies the Court's claim to such exclusive authority. The Court's recent decisions invalidating Section 5 legislation invoke the Constitution as a document that speaks only to courts. We call this vision the "juricentric Constitution." The juricentric Constitution imagines the judiciary as the exclusive guardian of the Constitution. It allows the Court's coordinate branches to enforce the Constitution only insofar as they enforce judicial interpretations of constitutional meaning, an approach that radically circumscribes Congress's power under Section 5 of the Fourteenth Amendment. The Court justifies these restrictions in a way that fundamentally misdescribes American constitutional culture, as we show by examining constitutional practice during the closing decades of the twentieth century, when the Court regularly looked to Congress to anchor and orient its constitutional judgments. We advance this argument in three stages.

Date of Authorship for this Version

2003

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