Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power

Reva B. Siegel, Yale Law School
Robert C. Post, Yale Law School

Abstract

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."