Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act

Posted: 2 May 2003

See all articles by Robert Post

Robert Post

Yale Law School

Reva Siegel

Yale University - Law School


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.

Suggested Citation

Post, Robert and Siegel, Reva B., Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act. Available at SSRN: https://ssrn.com/abstract=402760

Robert Post

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Reva B. Siegel (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics