Dissing Congress

80 Pages Posted: 8 Mar 2001

See all articles by Ruth Colker

Ruth Colker

Ohio State University (OSU) - Michael E. Moritz College of Law

James J. Brudney

Fordham University School of Law


This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and the "phantom legislative history" approaches. Under the crystal ball approach, the Court has effectively penalized the enacting Congress for having failed to create a detailed legislative record, even though such a record requirement could not reasonably have been anticipated at the moment of legislative deliberation and enactment. Under the phantom legislative history approach, the Court has expressed interest in considering legislative history when assessing constitutionality, but then has established and applied a legal standard for review that even a detailed legislative record could not possibly satisfy. In Part I, we trace the development of this recent judicial activism in which disrespect for Congress is a fundamental element. In Part II, we describe the Court's decisions in Kimel v. Florida Board of Regents and United States v. Morrison as examples of the crystal ball approach, and discuss the implications of this methodology for the internal operations of Congress and for the exercise of federal legislative powers. In Part III, we consider Kimel and Morrison as also illustrating the phantom legislative history approach and discuss the significant implications of this methodology for the relationship between the courts and Congress. Finally, in Part IV we invoke these two methods to help explain the contrast between the Court's asserted interest in legislative recordbuilding in the constitutional law setting and its simultaneous disdain for legislative history when construing statutes in nonconstitutional settings. Part IV also addresses how the Court's legislative history approach, especially in the Section Five area, may actually threaten traditional federalism objectives regarding the role of Congress.

Keywords: constitutional law, legislation, Congress, federalism, separation of powers, employment discrimination

JEL Classification: K31, K10

Suggested Citation

Colker, Ruth and Brudney, James Jules, Dissing Congress. Available at SSRN: https://ssrn.com/abstract=262330 or http://dx.doi.org/10.2139/ssrn.262330

Ruth Colker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
(614) 292-0900 (Phone)
(614) 292-2035 (Fax)

HOME PAGE: http://moritzlaw.osu.edu/faculty/professor/ruth-colker/

James Jules Brudney

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-7387 (Phone)

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