Juriscentrism and the Original Meaning of Section Five

Abstract

Among the most important issues that the United States Supreme Court has considered in recent years is the extent of congressional power to enforce the Fourteenth Amendment, pursuant to Section Five of that Amendment. Recently, in Nevada v. Hibbs, the Court held that the Family Medical Leave Act is fully enforceable against state employers because it is an appropriate sex equality measure falling within Congress' Section 5 power. The Court's ruling in Hibbs stands in stark contrast with the Court's other recent cases in which it struck down provisions of similar civil rights laws, including Alabama v. Garrett, Kimel v. Board of Regents, and United States v. Morrison. In contrast to Garrett, Kimel and Morrison, the Court's surprising yet welcome ruling in Hibbs raises the question of why congressional power to address sex discrimination in the workplace should be broader than its power to protect the disabled, older people, and victims of gender-motivated violence. Upon further reflection, however, it is apparent that Hibbs is consistent with the other cases in one important respect - in all of these cases, the Court made it clear that only the Court, and not Congress has the power to interpret the Fourteenth Amendment. In this paper, I argue that the Court's juriscentric approach to Section Five is inconsistent with the intent of the Framers of the Fourteenth Amendment, and wrongly undervalues Congress' important role in protecting discrete and insular minorities.

The Framers of the Fourteenth Amendment intended it to alter the structure of our government in terms of both federalism and separation of powers. The Fourteenth Amendment is the first constitutional provision to clearly establish federal individual rights that are enforceable against states. This aspect of the Fourteenth Amendment, which altered the balance of federalism, is widely recognized by constitutional scholars, who have engaged in a healthy debate over the extent of the rights encompassed by Section One of that Amendment. Less widely recognized is the fact that the Reconstruction Amendments are also the first constitutional provisions to give Congress the power to define and enforce individual rights. The congressional debates during the Reconstruction Era reveal the fact that the Framers saw Congress, and not the federal courts, as the primary protectors of the rights of their citizens. Acting against the backdrop of such pro-slavery decisions as Dred Scott and Prigg v. Pennsylvania, the Framers saw the Court not as a champion of equality rights, but as a threat to those rights. Congress' rights-generating power is central to the original meaning of the Fourteenth Amendment. Yet most constitutional scholars, and a majority of the Supreme Court, have overlooked this fact.

This paper also challenges the widely held view that only the federal courts, and not the political branches, protect discrete and insular minorities. The court's role is justified by the argument that the Court exercises a counter-majoritarian function, insulated from the vagaries of the political process, and thus is best suited to protect minorities from the whims of the majority. Contrary to this view, during two of the three historical periods in which the federal government significantly expanded individual rights, Reconstruction and the New Deal, it was Congress, and not the Court, that took the leading role. While the Court's landmark ruling in Brown v. Board of Education was crucial to the third period, the civil rights era of the 1960s, congressional action was necessary to fulfill the promise of Brown. Hence, Congress has embraced the role of protecting individual rights during crucial periods in our history. The Framers of the Fourteenth Amendment did this, and they empowered future Congresses to do so as well. Constitutional scholars and members of the Court should keep this role in mind, which justifies a more deferential, and less juriscentric approach to Section Five on the part of the Court.

Keywords: Constitutional Law, Fourteenth Amendment, Individual Rights, Constitutional Theory

JEL Classification: J78, K10