Legislative constitutionalism and Section Five power: policentric interpretation of the Family and Medical Leave Act.

• Author: Post, Robert C.

CONTENTS I. THE ENFORCEMENT MODEL AND SECTION 5 LEGISLATION II. THE ENFORCEMENT MODEL AND INSTITUTIONAL DIFFERENTIATION A. Institutional Differentiation and Constitutional Interpretation B. The Enforcement Model, Institutional Differentiation, and the FMLA III. THE FMLA AND THE RISE OF SEX DISCRIMINATION LAW: A SOCIAL MOVEMENT HISTORY A. The Enforcement Model and American Constitutionalism B. Equal Citizenship and the Family C. The FMLA as Legislative Constitutionalism: Statutory Aims and Antecedents 1. The Comprehensive Child Development Act 2. The Pregnancy Discrimination Amendment' 3. The Family and Medical Leave Act IV. BEYOND THE ENFORCEMENT MODEL: POLICENTRIC CONSTITUTIONAL INTERPRETATION A. The Model of Policentric Constitutional Interpretation B. The Affirmative Case for Policentric Constitutional Interpretation C. The Case Against Policentric Constitutional Interpretation D. Policentric Constitutional Interpretation and Constitutional Validity E. Policentric Constitutional Interpretation and the FMLA Family Leave Provisions V. FEDERALISM AND POLICENTRIC CONSTITUTIONAL INTERPRETATION VI. CONCLUSION Because Section 5 of the Fourteenth Amendment vests in Congress "power to enforce, by appropriate legislation, the provisions of this article," (1) the great rights contained in Section 1 of the Fourteenth Amendment are enforced by both Congress and the Court. How to conceive of the relationship between the legislative power established in Section 5 and the judicial power authorized by Section 1 is one of the deep puzzles of American constitutional law. This Article argues that Section 5 is a structural device that fosters the democratic legitimacy of our constitutional order. It links the legal interpretations of courts to the constitutional understandings of the American people, as expressed through their chosen representatives.

The history of Section 5 doctrine has been one of turmoil and revision. In the early years of the Fourteenth Amendment the Court was quite hostile to Section 5 power, fearing that it might "authorize Congress to create a code of municipal law for the regulation of private rights" that would displace "the domain of State legislation." (2) In the 1960s, during the so-called Second Reconstruction, the Court adopted a deliberately permissive stance and began to review Section 5 legislation with the same deference that it extended to every other exercise of national authority in the aftermath of the New Deal. (3) In recent years the Rehnquist Court has turned the tables once again. In addition to reviving concerns about federalism, it has discovered an entirely new reason to renew judicial hostility to Section 5 authority: separation of powers.

The Rehnquist Court now views Section 5 power as a potential threat to the Court's role as "the ultimate expositor of the constitutional text." (4) Beginning with its 1997 decision in City of Boerne v. Flores, (5) the Court has repeatedly (6) affirmed that Section 5 does not authorize Congress "to determine what constitutes a constitutional violation" (7) or "to rewrite the Fourteenth Amendment law laid down by this Court." (8) The Court has held that authority to pronounce constitutional law lies exclusively with the judicial branch of the federal government, which possesses "the duty to say what the law is." (9) Condemning Section 5 legislation that might establish Congress as an independent interpreter of the Constitution, the Court has announced that "Congress' power under [section] 5 ... extends only to 'enforc[ing]' the provisions of the Fourteenth Amendment," and that "Congress does not enforce a constitutional right by changing what the right is." (10)

We call this view of separation of powers the "enforcement model." The Rehnquist Court has used the enforcement model to strike down path-breaking civil rights legislation enacted under the quite different understanding of Section 5 that prevailed during the thirty years that preceded Boerne. (11) The enforcement model draws authority from Cooper v. Aaron, (12) from the Court's bold claim that the federal judiciary must be "supreme in the exposition of the law of the Constitution" (13) if it is to protect precious constitutional fights from the depredations of majoritarian politics. Disagreement with the enforcement model would seem possible only on the basis of a popular constitutionalism that would virtually abandon judicial review. (14) It is no surprise that the enforcement model presently enjoys widespread support on all sides of the political spectrum.

We contend, however, that there is no need to choose between judicial review and innovative Section 5 legislation based on congressional interpretations of the Fourteenth Amendment. Both are possible, but only if we can break the hold that the enforcement model has on our common sense. The model seeks to exclude Congress from the process of constitutional lawmaking because it regards the integrity of our system of constitutional rights as dependent upon its complete insulation from the contamination of politics. Although we agree that there are many circumstances when constitutional law requires separation from politics, we also believe that a legitimate and vibrant system of constitutional law requires institutional structures that will ground it in the constitutional culture of the nation. (15) Our Constitution contains a variety of structures and arrangements that facilitate these necessary connections between constitutional law and constitutional culture. These mechanisms range from the amendment procedures of Article V to the political appointment of Article III judges. Section 5 is best conceived as another such mechanism.

We therefore propose an account of Section 5 power that would enable it to perform this function. We call this account the model of policentric constitutional interpretation. The policentric model holds that for purposes of Section 5 power the Constitution should be regarded as having multiple interpreters, both political and legal. The model attributes equal interpretive authority to Congress and to the Court. The model thus entails (1) that Congress does not violate principles of separation of powers when it enacts Section 5 legislation premised on an understanding of the Constitution that differs from the Court's, and (2) that Congress's action does not bind the Court, so that the Court remains free to invalidate Section 5 legislation that in the Court's view violates a constitutional principle requiring judicial protection. This account of Section 5 power combines a robust legislative constitutionalism with a vigorous commitment to rule-of-law values.

In advancing the policentric model of Section 5 authority, we do not understand ourselves to be proposing some novel or innovative constitutional regime. To the contrary, the policentric model more accurately reflects the understandings and practices that make up our constitutional practice than does the enforcement model. During the period between the Second Reconstruction and Boerne, for example, Section 5 doctrine actually fostered a policentric practice of Section 5 authority. Our thesis in this Article is that Section 5 jurisprudence has been, and ought to remain, policentric. We draw on both history and theory to show that Section 5 legislation has in the past helped to establish democratic foundations for the Court's own articulation of constitutional rights.

We develop the history and theory of Section 5 power in the context of a specific case, Nevada Department of Human Resources v. Hibbs, (16) which the Court will decide in its 2002 Term. At issue in Hibbs is the question of whether the family leave provisions of the Family and Medical Leave Act of 1993 (FMLA) (17) are a valid exercise of Section 5 power. The question arises because Congress cannot abrogate the Eleventh Amendment immunity of states except when it acts pursuant to its authority under Section 5. (18) The family leave provisions at issue in Hibbs require employers to permit eligible employees to take (unpaid) leave totaling twelve weeks per calendar year to care for ill family members. (19) Congress believed that the FMLA was a valid exercise of its Section 5 authority. It announced that the purpose of the FMLA was

(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity;

(2) to entitle employees to take reasonable leave for ... the care of a child, spouse, or parent who has a serious health condition;

(4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for ... compelling family reasons, on a gender-neutral basis; and

(5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause. (20)

The essential question posed by Hibbs is whether the right to employment leave to care for a sick family member established by the FMLA is "appropriate legislation" to enforce the Equal Protection Clause of the Fourteenth Amendment. The difficulty is that the family leave provisions of the FMLA do not seem to resemble any Section 1 right that the Court currently enforces. The Court now interprets the Equal Protection Clause to prohibit state action that discriminates on the basis of sex; (21) it does not read the Clause as a means to "promote the goal of equal employment opportunity." The family leave provisions of the FMLA are thus an ideal vehicle to explore the basic question posed by the-enforcement model: What is the relationship between legislative and judicial enforcement of the Fourteenth Amendment?

Our discussion proceeds in five Parts. In Part I, we describe the enforcement model on...