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

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.