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Abstract:
After decades of assault on the jurisprudence of the Warren Court, many progressive legal scholars have lost faith in judicial enforcement of constitutional rights. Some have responded by embracing popular constitutionalism and advocating mobilization against the Rehnquist and Roberts Courts; others, chastened, urge a minimalist jurisprudence that will avoid giving any group offense. There is fear of provoking the kind of backlash that many associate with Roe, which is often regarded as having caused the rise of the New Right. In this article, we offer a new account of the relationship between adjudication and popular constitutionalism, which we call democratic constitutionalism. Democratic constitutionalism affirms both the need for judicially enforced rights and the fundamental significance of popular constitutional engagement.

We begin from the understanding that, in the American tradition, constitutional politics and constitutional law depend on one another, however insistently they assert their autonomy. This article offers an account of democratic constitutionalism which emphasizes the interdependence of judicial and popular enforcement of constitutional rights, despite perpetual friction between them. Judicially enforceable rights give concrete and institutional form to constitutional values; ongoing popular constitutional engagement ensures that these values retain democratic legitimacy.

Interpretive disagreement is a normal condition for the development of constitutional law. We identify understandings and practices that enable citizens to make claims on the Constitution and government officials to resist and respond to their claims; these interactions shape the Constitution's meaning over time in ways that sustain citizen engagement in our constitutional order and reconcile Americans' competing commitments to the rule of law and to self-governance.

We draw on these understandings to question leading accounts of backlash featured in the work of Michael Klarman, William Eskridge, and Cass Sunstein. Each of these theorists tends in his own way to overestimate the costs of backlash and to underestimate its benefits. They are each attuned to the harms that attend constitutional conflict, but they do not sufficiently consider how citizen engagement in constitutional contestation can contribute to social cohesion in a normatively heterogeneous polity.

Roe symbolizes the fears of those who counsel courts to avoid controversy. Legal scholars and political commentators commonly assert that judicial overreaching produced Roe rage, arguing that legislatures might have liberalized access to abortion if only the Court had stayed its hand. We examine scholarship on Roe's reception, as well as primary sources of the era, which together undermine this conventional account. Backlash to Roe was not just about judicial overreaching. Political mobilization against the decision expressed opposition to abortion's liberalization that began in state legislatures years before Roe was decided. As importantly, backlash to Roe was not just about abortion. During the 1970s, opponents of the Equal Rights Amendment and the school prayer decisions condemned the abortion right as an expression of "secular humanism," giving birth to the coalition politics we now associate with Roe rage - a broad-based social movement hostile to legal efforts to secure the equality of women and the separation of church and state. Roe rage opposes ideals of individualism and secularism that lie at the foundation of our modern constitutional order. Accommodating resistance to Roe thus presents normative questions analogous to those posed by accommodating resistance to Brown.

The article concludes by illustrating how the themes of Roe rage have recently found expression in the Supreme Court's opinion in Carhart.

abortion, democracy, constitution, roe, constitutionalism, klarman, eskridge, sunstein, backlash, popular constitutionalism, adjudication

Abstract:
In "Directions in Sexual Harassment Law," 38 authors explore the past and future development of the field, with an introduction by Reva Siegel and an afterword by Catharine MacKinnon, the volume's co-editors. Siegel opens the collection with "A Short History of Sexual Harassment," which recounts striking changes in the practice and protest of sexual harassment in the past and in our own day. She analyzes legal recognition of sexual harassment as sex discrimination, treating it as an important chapter in this history that reveals much about the ways antidiscrimination law enables and limits challenges to the social world of which it is a part. MacKinnon closes the book with an assessment of the changes wrought by sexual harassment law in the quarter century since she argued for legal recognition of the claim in "Sexual Harassment of Working Women" (1979). Anchoring her analysis in the national debates spanning the Thomas-Hill hearings and the Clinton impeachment, MacKinnon charts the norms and practices this body of law has transformed, as well as the entrenched understandings and arrangements that it has yet to disturb. (Siegel's and MacKinnon's essays are posted with this abstract.)

"Directions in Sexual Harassment Law" will be published by Yale University Press in January of 2004. Its 37 essays are grouped in seven parts. In Part I, Contexts, Andrea Dworkin, Guido Calabresi, Anne Simon, Pamela Price, and Gerald Torres offer brief observations on the law's role in addressing sexual harassment. In Part II, Unwelcomeness, Carol Sanger, Louise Fitzgerald, Kathy Abrams, Jane Larson, and Robin West analyze the role of notions of consent in sexual harassment law and theory. In Part III, Same-Sex Harassment, William Eskridge, Katherine Franke, Janet Halley, Marc Spindelman, and Chris Kendall debate the relation of gender and sexuality and the role of law in regulating sexual relations and redressing sexual injury. In Part IV, Accountability, Judith Resnik, David Oppenheimer, Deborah Rhode, Ann Scales, and Cass Sunstein & Judy Shih explore questions of institutional responsibility for sexual harassment in both the employment and education settings. Part V, Speech, considers how, if at all, law ought take account of speech values in the ways it defines and regulates sexual harassment, in essays by Frederick Schauer, Dorothy Roberts, Robert Post, Kingsley Browne, Janine Benedet, and Jack Balkin. In Part VI, Extensions, Adrienne Davis, Tanya Kateri Hernandez, Lea VanderVelde, Sally Goldfarb, and Diane Rosenfeld trace the life of the sexual harassment paradigm in other legal contexts. Part VII, Transnational Perspectives, considers sexual harassment law in comparative perspective. Orit Kamir, Susanne Baer, Abigail Saguy, Yukiko Tsunoda, Martha Nussbaum, and Christine Chinkin respectively analyze sexual harassment law in Israel, Germany, France, Japan, India, and under international human rights law.

Abstract:
With the abortion debate in stalemate over the last several decades, the antiabortion movement has become increasingly concerned to speak to voters concerned about protecting women as well as the unborn. Prohibiting abortion, the movement now emphasizes, protects women's health and choices as mothers. The abortion ban defeated in South Dakota last November reflected this shift from fetal-focused to gender-based justifications for abortion restrictions. Woman-protective antiabortion argument now plays an important part in legislation and litigation across the nation.

Drawing on the South Dakota record, this lecture offers a first constitutional analysis of the new woman-protective justification for restricting abortion. This lecture analyzes the state interest in protecting women from abortion asserted in the South Dakota statute and legislative history, and shows that the state's reasoning rests on gender stereotypes about women's capacity and women's roles. An abortion ban differs in structure from laws struck down in many of the classic sex discrimination cases, but South Dakota illustrates that an abortion ban can reflect and enforce many of the same gender stereotypes. Under these equal protection cases, government cannot require a woman seeking an abortion to become a mother for the reason that state knows a pregnant woman's nature, desires, and needs better than the pregnant woman herself. An abortion ban reflecting and enforcing this understanding of sex roles violates the Equal Protection Clause - and is unconstitutional sex-based state action, even if the Court limits or overrules Planned Parenthood v. Casey and Roe.

Exploring alternative constitutional limitations on the regulation of abortion sheds new light on the familiar constitutional framework set forth in Casey and Roe. The lecture's account of the equal protection limitations on the regulation of abortion identifies a concern for liberty at the heart of constitutional protection of women's equality, and a concern about sex equality at the heart of constitutional protection of women's choice.

abortion, equal protection, women, South Dakota, Roe, Casey, conservative

Abstract:
A fairly standard story about the development of antidiscrimination jurisprudence argues that, during the 1970s, the United States Supreme Court decisively rejected the views of Owen Fiss and other antisubordination theorists, and adopted a contrary and inconsistent theory of equality - the anticlassification principle - which holds that the government may not classify people either overtly or surreptitiously on the basis of a forbidden category like race. In this essay, we challenge this standard account, on analytical and historical grounds.

On the standard view, American antidiscrimination law reflects anticlassification principles. But as we show in the analytical section of the essay, the anticlassification principle does not itself do the work of deciding many important issues of antidiscrimination law. Courts must make a variety of implementing decisions in order to apply the anticlassification principle; and, as we demonstrate through a variety of examples, courts do not make such implementing decisions in any consistent manner. Inconsistency in the ways that courts have implemented the anticlassification principle, over time and in different parts of the law, suggests that the discourse of anticlassification conceals other values that do much of the work in determining which practices antidiscrimination law will enjoin. In other words, application of the anticlassification principle is not fixed, nor is the principle self-implementing. It may be invoked to legitimate traditional status arrangements, or to challenge them. The nation's understanding of what it means to "discriminate on the basis of race" or to "discriminate on the basis of sex" is a social construction that shifts over time in response to social movement protest. As social protest delegitimates certain practices, courts are often moved, consciously or unconsciously, by perceptions of status harm, to find violations of the anticlassification principle where they saw none before. Considered from this historical vantage point, American civil rights jurisprudence vindicates both anticlassification and antisubordination commitments.

If the discourse of anticlassification at times vindicates values that we associate with antisubordination, what was at stake in the rise of antisubordination scholarship as a distinct body of legal theory in the 1970s, beginning with Owen Fiss' pathbreaking Groups and the Equal Protection Clause? In the historical section of our essay, we argue that antisubordination theory was a response to the political retrenchment that began in the decade after the 1968 election. As nation and Court began to retreat from the social-justice commitments of the Second Reconstruction - now using the indeterminacy of anticlassification discourse to rationalize rather than to disrupt status-enforcing relations - Fiss and others sought to restate the principles at the heart of the civil rights struggle. Fiss well appreciated that the way in which the nation understood the principles animating the fight against Jim Crow would shape the way the nation faced debates about questions of racial justice in the future.

This problem of collective memory is no less burning in our own day. While it is true that the Court and country refused the path that Fiss and other advocates of racial justice urged in the 1970s, it is deeply false that, in virtue of these choices, the antisubordination principle is some alien discredited Other in American constitutional tradition. As this essay demonstrates, the antisubordination principle lives by multiple names, deep in the American Civil Rights Tradition, remaining its core and its conscience - even if, as history amply attests, it is the kind of principle the nation has often honored in the breach.

Abstract:
In Board of Trustees of the University of Alabama v. Garrett, the Court held that Congress can not exercise its power under Section 5 of the Fourteenth Amendment to enact legislation enforcing the provisions of the Fourteenth Amendment unless Congress first identifies a history and pattern of judicially redressible constitutional violations. Garrett rests on the premise that the Constitution is a legal document that speaks only to courts.

This essay criticizes this "juricentric" view of the Constitution, which in the years since City of Boerne v. Flores has come increasingly to shape the Court's Section 5 jurisprudence. We argue that the Constitution is not an exclusively legal document. The Constitution also possesses significant political dimensions, because it expresses the nation's understanding of its defining values and commitments. To interpret the Constitution is therefore to exercise both legal and political authority. The Court must exercise what Brandeis called "statesmanship" in order to mediate the tension between these two forms of authority. The Court's recent Section 5 cases overturn more than a generation of such statesmanship, in which the Court crafted doctrine that gave substantial leeway to the political branches of government to interpret constitutional rights without compromising either judicial review or judicial supremacy. Virtually the same Court that decided Cooper v. Aaron also decided Katzenbach v. Morgan, which deferred to congressional efforts to exercise its power under Section 5.

In the period between 1964 and 1997, the Court systematically blurred the relationship between statutory and constitutional standards, so that the Court could simultaneously affirm Section 5 legislation without committing itself to any definitive interpretation of Section 1 of the Fourteenth Amendment. In this way, the Court could encourage the participation of the popular branches of the federal government in the creation of constitutional culture, which in turn profoundly influenced the Court's own understandings of the Fourteenth Amendment. The Court's recent Section 5 jurisprudence suppresses this important dialogue between the judiciary and the popular branches of the federal government.

Abstract:
Americans debated questions of women's citizenship for over a half century before adopting the Nineteenth Amendment, but neither the Amendment nor its history now plays any role in modern interpretations of the Constitution. Instead, the Supreme Court addresses questions of women's citizenship under the Fourteenth Amendment, reasoning about problems of sex discrimination by analogy to problems of race discrimination. This framework denies sex discrimination law a foundation in constitutional history, and, in so doing, weakens its apprehension of issues affecting women's status and its authority to address them. The debates over woman suffrage that began with the drafting of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment are plainly relevant to understanding how the guarantee of equal citizenship applies to women. At the founding and for generations thereafter, Americans believed women did not need the vote because they were represented in the state through male heads of household. By adopting the Nineteenth Amendment, Americans were breaking with traditional conceptions of the family that were rooted in coverture, as well as with understandings of federalism that placed family relations beyond the reach of the national government. The debates over the Nineteenth Amendment thus memorialize the nation's decision to repudiate traditional conceptions of the family that have shaped women's status in public as well as private law and that are inconsistent with equal citizenship in a democratic polity. If concepts of sex discrimination were informed by the experience and deliberative choices of past generations of Americans, equal protection doctrine would better recognize forms of discrimination historically directed at women; and the law of federalism would take a more critical approach to claims that the family is a local institution, beyond the reach of the national government. The article closes by considering how this new, historically grounded approach to questions of sex discrimination under Sections One and Five of the Fourteenth Amendment would enable a different constitutional analysis of the portions of the Violence Against Women Act struck down in United States v. Morrison.

Abstract:
What is at stake in a sex equality approach to reproductive rights? At first glance, equality arguments would seem to entail a shift in constitutional authority for reproductive rights - for example, from the Due Process to Equal Protection Clause of the Fourteenth Amendment - but as the articles of this Symposium richly illustrate, equality arguments for reproductive rights need not take this legal form. In introducing this Symposium, I identify a sex equality standpoint on reproductive rights that can be, and is, expressed in a variety of constitutional and regulatory frameworks.

The Essay identifies some of the critical understandings and normative commitments that characterize the sex equality approach to reproductive rights. It then ties this cluster of critical understandings and normative commitments to particular advocates and authorities in the reproductive rights debate in the last several decades: it shows how the sex equality claim for reproductive rights was asserted in different doctrinal forms in the early 1970s, was then muted by Roe, the ERA debates and the early sex discrimination cases, and then found increasing recognition in Casey and the law review literature of the 1980s and 1990s. Recently, the dissenting justices in the Carhart case have asserted that the abortion right protects a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.

The introduction and essays of this Symposium demonstrate that the equality argument can be vindicated in many different doctrinal frameworks: under the Fourteenth Amendment's Due Process Clause, Privileges or Immunities Clause, or Equal Protection Clause, by cases decided under the Eighth Amendment, the Ninth Amendment, the Thirteenth Amendment, or the Nineteenth Amendment, through a federal or state statute, through human rights law, or by a synthesis of these forms of law.

abortion, reproductive rights, roe, women, equal protection, due process, sex equality

Abstract:
This Lecture investigates the social movement dynamics that produced woman-protective antiabortion argument. The Lecture explores the political conditions under which leaders of the antiabortion movement began to supplement or even to supplant the constitutional argument abortion kills a baby with a new argument, abortion hurts women - a claim that achieved widespread public notice with the Supreme Court's 2007 decision in Gonzales v. Carhart.

The Lecture's genealogy of a social movement claim begins in the 1980s, when members of the antiabortion movement asserted that abortion subjects women to regret, trauma, and psychological illness, a condition they termed post-abortion syndrome (PAS). My story then follows changes in the abortion-harms-women claim as it was transformed from PAS - a therapeutic discourse initially employed to dissuade women from having abortions and to recruit women to the antiabortion cause - into woman-protective antiabortion argument (WPAA), a political discourse forged in the heat of social movement conflict that sought to persuade audiences outside the movement's ranks in electoral campaigns and in constitutional litigation.

Whereas PAS grew up as a mobilizing discourse deployed primarily among women volunteers and clients in the antiabortion movement's crisis pregnancy network - a context in which abortion-hurts-women testimonials had important expressive functions - WPAA took shape in political contexts in which the abortion-hurts-women argument had important strategic functions. In the 1990s, antiabortion advocates sought to explain to audiences that ambivalently supported the abortion right why women would benefit from legal restrictions on abortion. As they did so, they fused PAS claims and stories with traditional gender-paternalist argument, justifying restrictions on women's agency as needed to protect women from male coercion and to free women to be mothers. As a political discourse designed to rebut feminist, pro-choice claims, WPAA came to internalize elements of the very arguments it sought to counter-fusing the public health, trauma, and survivors idiom of PAS with the idiom of the late twentieth-century feminist and abortion-rights movements. As the Lecture shows, social movement mobilization, conflict, and coalition each played a role in the evolution and spread of the woman-protective antiabortion argument, in the process forging new and distinctly modern ways to talk about the right to life and the role morality of motherhood in the therapeutic, public health, and political rights idiom of late twentieth-century America.

The Lecture concludes by considering the new gender-paternalist justifications for abortion restrictions discussed in Carhart. With the spread of woman-protective antiabortion argument and its seductively modern justifications for using law to impose motherhood on women, Justice Kennedy and the nation will once again have to decide - not only how to balance the liberty of the pregnant woman against the state interest in protecting potential life - but more fundamentally, about the kind of women that constitutional guarantees of liberty and equality protect. This question is far from abstract, as South Dakota once again considers whether to adopt an abortion ban, justified by fetal-protective and woman-protective argument, in the 2008 elections.

abortion, constitutional law, gender, culture, women's rights, conservatives, social movements, post-abortion syndrome, gonzales v. carhart, equal protection, Fourteenth Amendment, South Dakota

Abstract:
This essay considers whether and how originalism promotes the Constitution's democratic legitimacy, in theory and in practice. In the late twentieth century, critics of the Warren and Burger courts argued that judicial review lacks democratic authority when judges depart from the original understanding of those who ratified the Constitution. Originalism's critics objected that giving past generations this kind of control over the living would vitiate the Constitution's democratic authority. Initially, originalism's theorists belittled this objection to dead hand control; recently, originalists have developed varied and sophisticated responses to it. But these responses generally tend to qualify originalism's claims to democratic legitimacy or to weaken the originalist character of the interpretive method they set out to defend.

The dead hand objection may trouble originalism in theory, but it poses far less of a problem in practice. To show why, the essay examines originalist interpretation in Heller v. District of Columbia. While Heller purports to enforce the decisions of eighteenth-century Americans, this essay identifies several forms of internal evidence that suggest the opinion is enforcing the beliefs of Americans living long after the Constitution's ratification. This evidence, considered alone or with the social movement history of Heller that I have elsewhere examined, shows how originalism can enforce the constitutional convictions of living Americans. In practice, originalism appears to be a species of popular constitutionalism.

If originalism does not enforce dead hand control, what role might constitutional history play in constitutional interpretation? To explore this question, I compare the role of historical argument in Heller and Parents Involved in Community Schools v. Seattle School District No. 1-a recent equal protection decision in which conservative and liberal justices fought over Brown and the post-ratification history of the Fourteenth Amendment. This analysis suggests that collective memory of past lawmaking constrains debate as it enables Americans of very different normative views to make authoritative claims about who we are and what we owe one another.

originalism, dead hand, social movement, collective memory, Heller, Parents Involved

Abstract:
This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court's recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe - exploring strategic considerations that lead advocates to favor incremental restrictions over bans, and to supplement fetal-protective justifications with woman-protective justifications for regulating abortion. The essay argues that a multi-faceted commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity is a value that bridges communities divided in the abortion debate, as well as diverse bodies of constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion, while Casey invokes dignity as a reason for protecting women's abortion decisions from government regulation. This dignity-based analysis of Casey/Carhart offers principles for determining the constitutionality of woman-protective abortion restrictions. that are grounded in a large body of substantive due process and equal protection case law. Protecting women can violate women's dignity if protection is based on stereotypical assumptions about women's capacities and women's roles, as many of the new woman-protective abortion restrictions are. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. The new woman-protective abortion restrictions do not provide women in need what they need: they do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting on alternative - and constitutional - modes of protecting women who are making decisions about motherhood.

abortion, dignity, Carhart, Casey, Kennedy

Abstract:
Social movements change the ways Americans understand the Constitution. Social movement conflict, enabled and constrained by constitutional culture, can create new forms of constitutional understanding - a dynamic that guides officials interpreting the open-textured language of the Constitution's rights guarantees. To show how constitutional culture channels social movement conflict to produce enforceable constitutional understandings, I consider how equal protection doctrine prohibiting sex discrimination was forged in the Equal Rights Amendment's defeat.

This story of the "de facto ERA" illustrates how constitutional culture can channel social movement conflict to produce little noticed socially integrative effects. As movement and counter-movement struggle to persuade (or recruit) uncommitted members of the public, each movement is forced to take account of the other's arguments, and in time may even begin to incorporate aspects of the other's arguments into its own claims - a dynamic that can transpire unconsciously or with the conscious purpose of strengthening arguments under conditions of adversarial engagement.

Movement conflict also plays an underappreciated role in enabling judicial review. As adversaries hone their arguments to meet their opponent's most powerful claims, the quest to persuade creates areas of apparent or actual convergence in which the Court can decide cases. The ERA ratification debates led opponents to assert that the Fourteenth Amendment already contained sex equality principles that ERA proponents insisted should be added to the Constitution, and led proponents to separate concepts of sex equality under the ERA from abortion and gay rights which opponents charged the ERA would promote. Understandings consolidated in the ERA debate guided the Court as it ruled that sex discrimination violated the equal citizenship principle and as it limited the kinds of practices cognizable as sex discrimination.

Examining how the ERA's proposal and defeat shaped the modern law of sex discrimination suggests that when social movement conflict is channeled by constitutional culture, it can guide officials in enforcing the Constitution in new ways, enabling constitutional change without lawmaking that nonetheless respects the distinction between politics and law. Constitutional culture provides the understandings and practices that citizens and officials draw on in debates about the Constitution's meaning, structuring the forms of communication and deliberative engagement among citizens and officials that dynamically sustain the Constitution's democratic authority in history.

ERA, equal rights, sex discrimination, women, 1970s, constitutional law, social movements

Abstract:
The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separation of powers in which the Court alone can interpret the Constitution, while Congress can use its Section 5 power only to enforce the constitutional interpretations of the Court. The article challenges this understanding, which it calls the "enforcement model" of Section 5, and contrasts it to an alternative account, in which Congress can enact Section 5 legislation based on its own interpretation of constitutional rights, even if Congress's interpretation diverges from the Court's. The article names this alternative account of Section 5 power the model of "policentric constitutional interpretation." For decades, Section 5 has served as a structural device that promotes policentric interpretation, and so fostered the democratic legitimacy of our constitutional order. The article develops its claims about the enforcement and policentric models of Section 5 power in a case study of the Family and Medical Leave Act of 1993 (FMLA), the Section 5 statute at issue in Nevada Department of Human Resources v. Hibbs.

The article offers two critiques of the enforcement model. It demonstrates, first, that the enforcement model cannot generate criteria capable of distinguishing Section 5 legislation that enforces judicial interpretations of the Constitution from Section 5 legislation that enforces congressional interpretations of the Constitution. Without such criteria, judicial application of the model must depend instead on extrinsic considerations, like the Court's concerns about federalism or its attitude toward new forms of antidiscrimination law. The enforcement model thus leads to unaccountable decisionmaking, with the Court invalidating civil rights legislation on grounds that it neither names nor justifies.

The article offers a second, and more fundamental, critique of the enforcement model. The enforcement model assumes that authoritative interpretation of the Constitution is best conducted by an institution that is insulated from all contact with politics. This assumption is false. Overlapping legislative and judicial enforcement of Fourteenth Amendment rights plays an important structural role in our constitutional system, because it links constitutional law to the larger constitutional culture of the nation.

The article illustrates this thesis by a case study of the mobilization of the women's movement that gave rise to modern sex equality law, including the FMLA itself. The article shows how the movement's efforts precipitated a wave of congressional lawmaking in the 1970s that reflected a new constitutional vision of equality between the sexes. Eventually the Supreme Court followed Congress's lead and altered its Fourteenth Amendment doctrine to incorporate the evolving constitutional beliefs of the American people. Examining how Congress and the Court have in the past quarter century each understood questions of equal protection in matters concerning conflicts between work and family illustrates important institutional differences in the ways Congress and the Court enforce constitutional rights.

As this history demonstrates, Congress's political responsiveness makes it the object of social movement mobilization and a unique register of the nation's evolving constitutional understandings. The policentric model of Section 5 power holds that Congress and the Court may each consider and incorporate the other's views, yet each also retains autonomy in judgment, so that the Court remains free to strike down any law that it believes threatens individual liberties or impairs structural values such as separation of powers or federalism. The policentric model thus preserves both the nation's rich legacy of legislative constitutionalism and the judicially enforced rights on which we have come to depend.