Congress' Section 5 Power and Remedial Rights

96 Pages Posted: 23 Sep 2001 Last revised: 7 Nov 2013

See all articles by Tracy A. Thomas

Tracy A. Thomas

University of Akron School of Law

Date Written: 2001


This article explores the legal question of reconciling remedies for constitutional rights when one remedy is crafted by the court and a substitute remedy is enacted by Congress pursuant to Section 5 of the Fourteenth Amendment. The question is particularly relevant at this time in light of recent trends in Congress to limit judicial remedies and the recent decisions by the Supreme Court that more narrowly define Congress's authority under Section 5. The article examines five Supreme Court cases from the 1999-2000 term (including the cases dealing with Miranda, the Prison Litigation Reform Act, and the Violence Against Women Act) under the lens of Remedies law to develop a more comprehensive framework of the Section 5 power that accurately defines the role of the legislature in enacting remedies for constitutional rights. The article expressly rejects the traditional characterization of remedies as "secondary" to the primary right that can be freely altered by Congress. Rather, the article advances a new "unified right theory" of remedies and integrates that theory into a workable framework for evaluating Section 5 legislation that reconciles both the Supreme Court's Section 5 jurisprudence and the true nature of remedies. The article ultimately concludes that Congress is limited under Section 5 to enacting prophylactic and proportional remedies that are adequate substitutes for judicial remedies that give meaning and life to judicially-defined constitutional guarantees. The article expands upon the Court's vague definitions of "prophylactic" and "proportional" by applying common interpretations of these terms from the law of Remedies.

JEL Classification: H11, K19

Suggested Citation

Thomas, Tracy A., Congress' Section 5 Power and Remedial Rights (2001). 34 UC Davis Law Review 673 (2001). Available at SSRN:

Tracy A. Thomas (Contact Author)

University of Akron School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
330-972-6617 (Phone)
330-258-2343 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics