Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination.(1) In Kimel v. Florida Board of Regents,(2) the Court concluded that Section 5 did not give Congress the power to abrogate state Eleventh Amendment immunity for suits under the Age Discrimination in Employment Act of 1967,(3) and in United States v. Morrison,(4) the Court held that Congress was without power under either the Commerce Clause or Section 5 to enact a provision of the Violence Against Women Act of 1994 (VAWA)(5) creating a federal civil remedy for victims of gender-motivated violence.(6)
Both Kimel and Morrison are written in forceful and broad strokes that threaten large stretches of congressional authority under Section 5. Yet the Court's Section 5 holdings were rendered without dissent.(7) Although in Kimel there were four Justices prepared to disagree strenuously with the decision's liberal interpretation of Eleventh Amendment immunity,(8) and although in Morrison there were four Justices prepared to disagree strenuously with the decision's restrictive interpretation of federal Commerce Clause power,(9) not a single Justice in either case was ready to vote to sustain congressional power under Section 5, even as Justice Breyer identified key deficiencies in Morrison's justification for its Section 5 holding.(10)
This silence is remarkable, yet explicable. Since the New Deal, the Commerce Clause has shaped core understandings of the contours of national power. In the early 1960s, the Supreme Court took the consequential step of upholding the public accommodations provisions of the Civil Rights Act of 1964 on Commerce Clause grounds alone,(11) despite the fact that Congress had asserted authority to enact the legislation under both the Commerce Clause and Section 5 of the Fourteenth Amendment.(12) We have ever since grown habituated to the use of Commerce Clause power to sustain federal antidiscrimination law, never definitively resolving the shape and reach of Section 5 authority.
What might be called the "jurisdictional" compromise of the 1960s was forged at a time when the Commerce Clause seemed to offer boundless support for Congress's authority to enact antidiscrimination laws. But this no longer appears to be the case. Given the Court's current determination to impose limits on Congress's authority to enact antidiscrimination legislation under the Commerce Clause, the time has come to examine thoroughly, at long last, a question that the Court has now rendered inescapable: the extent of Congress's power to enact antidiscrimination legislation under Section 5 of the Fourteenth Amendment.
A growing number of the Court's decisions(13) now claim authoritatively to resolve this question within a framework that seeks to protect what the Court regards as "vital principles necessary to maintain separation of powers and the federal balance."(14) These decisions are enormously consequential. This past Term represents the first time since Reconstruction that the Court has declared that Congress lacked power to enact legislation prohibiting discrimination. Yet the impact of last Term's decisions is still not clear. The decisions are rife with ambiguity. After Kimel, for example, it is uncertain whether and to what extent Congress can exercise its power under Section 5 to redress forms of discrimination that differ from those that courts prohibit in cases arising under Section 1 of the Fourteenth Amendment. It is equally unclear after Morrison whether and to what extent antidiscrimination legislation enacted under Section 5 can regulate the conduct of private actors. Depending upon how Kimel and Morrison are interpreted in subsequent decisions, the Court's Section 5 jurisprudence could develop in quite different directions.
Any hope of engaging the Court with regard to the premises of this emerging Section 5 jurisprudence depends upon wrestling with the Court's reasoning now, while this new body of doctrine is still taking shape in ongoing litigation. We thus begin this Essay by analyzing Section 5 legislation within the framework advanced by the Court in its recent decisions. We argue that neither separation-of-powers nor federalism values require the kind of stringent judicial supervision of Section 5 antidiscrimination legislation that some interpretations of the Court's recent decisions might be read to authorize. After analyzing Congress's Section 5 power within the terms of the Court's recent decisions, we conclude the Essay by stepping outside the framework of these decisions. We question the court-centered model of constitutional interpretation that these decisions assume, examining the relationship between Court and Congress that actually shaped the meaning of the Equal Protection Clause in recent decades. We argue that this history justifies a continuing role for democratic vindication of equality values.
The Essay is divided into four parts. In the first, we briefly set the stage by describing the interlocking Supreme Court decisions that have brought Congress's power to enact antidiscrimination legislation under Section 5 to the top of the judicial agenda, while simultaneously rendering doubtful the nature and extent of Congress's authority to enforce the Equal Protection Clause.
In Part II, we examine the separation-of-powers constraints that the Court has imposed on Section 5 power in the Kimel decision. Section 5 gives Congress the "power to enforce, by appropriate legislation, the provisions of this article," and the constitutional scope of Section 5 legislation therefore doubles back on the question of how "the provisions of this article" are to be read. The Court apparently regards this peculiar doubled structure as especially threatening to its authority to interpret the Constitution, and it conceptualizes this question as an issue of separation of powers.(15) Kimel uses a test of "congruence and proportionality" to ensure that congressional Section 5 legislation does not encroach on the Court's prerogative to declare the meaning of the Fourteenth Amendment. The test is intended to distinguish statutes that attempt to remedy violations of Section 1 of the Amendment from those that attempt to redefine the constitutional protections of that Section. While some lower courts have begun to read Kimel as requiring that legislation enforcing the Equal Protection Clause conform to the terms of the Court's cases judicially enforcing the Clause,(16) we argue that, properly read, Kimel allows for institutional variance in legislative and judicial enforcement of the Clause. This approach is supported not only by the Court's reasoning in Kimel, but also by the Court's reasoning in cases interpreting the equal protection guarantee of Section 1.
If Kimel constrains Section 5 power to ensure that Congress's efforts to enforce the Equal Protection Clause do not encroach on the prerogatives of the Court, Morrison constrains Section 5 power to ensure that Congress's efforts to enforce the Equal Protection Clause do not encroach on the prerogatives of the states. In Part III we analyze how Morrison applies the Court's "resurgent federalism"(17) to antidiscrimination legislation enacted under Section 5. Since the days of Reconstruction, the Court has worried that Section 5 might "authorize Congress to create a code of municipal law for the regulation of private rights" that will displace "the domain of State legislation."(18) Morrison provocatively appeals directly to these Reconstruction-era perspectives. We subject Morrison to critical scrutiny, examining its arguments and reasoning, and measuring its vision of federalism against the historical development of the federal civil rights tradition in the twentieth century. Although Morrison might be interpreted as announcing a per se rule forbidding the use of Section 5 power to regulate private parties, we argue that the decision is better read as requiring a case-by-case determination of whether Section 5 legislation is congruent and proportional to the constitutional violation it seeks to remedy. We conclude Part III by exploring whether federalism values require restrictions on Section 5 antidiscrimination legislation that is properly remedial within the meaning of Kimel.
However interpreted, the Court's decisions in Kimel and Morrison impose new and substantial restrictions on Congress's power to enact antidiscrimination laws under Section 5. This is because both decisions conceive of the legitimacy of Section 5 power as ancillary to judicial authority to enforce Section 1 of the Fourteenth Amendment. In Part IV we suggest that this framework of analysis misconceives how the constitutional meaning of the Equal Protection Clause is established. We argue that the framework is not required by either federalism or separation of powers, and that it is inconsistent with the development of equal protection jurisprudence in the decades after Brown v. Board of Education.(19) Drawing on the history recounted in Part III, we illustrate how the Court struggled with the distinctive dilemmas of interpreting the Equal Protection Clause during the founding decades of our modern antidiscrimination tradition and responded by forging a relationship with Congress that cannot be conceptualized within a framework that would require Section 5 legislation to be narrowly tailored to judicial enforcement of Section 1.
In the aftermath of Brown, the Court invited Congress's participation in vindicating equality norms, both because Congress could secure popular acceptance of the Court's decisions interpreting the Equal Protection Clause and because the representative branches of government were an important resource for the Court as it struggled to learn from and speak to the American people about the meaning of the Fourteenth...