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

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002

Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel

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. In Kimel v. Florida Board of Regents, 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, and in United States v. Morrison, 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) creating a federal civil remedy for victims of gender-motivated violence. Both Kimel and Morrison are written in forceful and broad strokes that threaten large stretches of congressional authority under Section 5. Yet the Court\u27s Section 5 holdings were rendered without dissent. Although in Kimel there were four Justices prepared to disagree strenuously with the decision\u27s liberal interpretation of Eleventh Amendment immunity, and although in Morrison there were four Justices prepared to disagree strenuously with the decision\u27s restrictive interpretation of federal Commerce Clause power, 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\u27s justification for its Section 5 holding. 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, despite the fact that Congress had asserted authority to enact the legislation under both the Commerce Clause and Section 5 of the Fourteenth Amendment. 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\u27s authority to enact antidiscrimination laws. But this no longer appears to be the case. Given the Court\u27s current determination to impose limits on Congress\u27s 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\u27s power to enact antidiscrimination legislation under Section 5 of the Fourteenth Amendment

Originalism as a Political Practice: The Right’s Living Constitution

To whatever extent the Rehnquist Court actually executed a counterrevolution, surely a good deal of its inspiration came from originalism, \u27 from the view that the only acceptable method of interpreting the U.S. Constitution is to apply the text and original meaning of various specific constitutional provisions. Originalists attacked progressive Warren Court decisions as judicial usurpations in need of discipline and reversal. Drawing on the work of pioneer conservative academics like Robert Bork and Raoul Berger, originalism became a central organizing principle for the Reagan Justice Department\u27s assault on what it regarded as a liberal federal judiciary. Originalism was proudly embraced by aggressively conservative Justices like William H. Rehnquist, Antonin Scalia, and Clarence Thomas. Originalism remains even now a powerful vehicle for conservative mobilization, as can clearly be seen in recent popular opposition to the citation of foreign law

Bridging the Gap to Strongest Families in British Columbia, Canada

America is its Constitution. In a recent string of decisions invalidating federal civil rights legislation, the Supreme Court has repeated the simple but powerful message: The Constitution belongs to the courts. Beginning from the premise that Congress\u27s authority is limited to those powers enumerated in the Constitution, the decisions emphasize that it is the Court\u27s special responsibility to mark where Congress has exceeded its constitutional bounds. The Court has insisted that it must impose judicially enforceable outer limits on Congress\u27s enumerated powers, even at the cost of considerable legal uncertainty. These decisions break with the judicial practice of the last half century, when the Court employed doctrines of deference to vindicate democratic values in constitutional interpretation, defining the scope of federal power in terms that gave great weight to Congress\u27s judgments about the nation\u27s needs and interests. No longer does the Court emphasize the respect due to the constitutional judgments of a coequal and democratically elected branch of government. Now it claims that only the judiciary can define the meaning of the Constitution. These remarkable decisions reflect not only the objective of protecting states from an overreaching national government, which sounds in federalism, but also the distinct theme of separation of powers. At issue is the cardinal rule of constitutional law that ever since Marbury this Court has remained the ultimate expositor of the constitutional text. The Court has been particularly skeptical of Congress\u27s efforts to exercise its power under Section 5 of the Fourteenth Amendment to enforce, by appropriate legislation, the provisions of this article. Congressional lawmaking under Section 5 raises especially knotty issues of separation of powers, because Section 5 legislation necessarily involves congressional judgments about the meaning of Section 1 of the Fourteenth Amendment. The Rehnquist Court has increasingly come to regard Section 5 legislation as challenging the Court\u27s ultimate authority to interpret the Fourteenth Amendment. In a series of cases that began with City of Boerne v. Flores in 1997, and that culminated two Terms ago in Board of Trustees of the University of Alabama v. Garrett, the Court has imposed ever more restrictive conditions on Congress\u27s ability to exercise its Section 5 power. These restrictions reflect the Court\u27s growing apprehension that Congress may be playing too large a role in interpreting and applying the Constitution. \u27 The decisions express with growing clarity the Court\u27s claim to an exclusive authority to interpret the Constitution. This article explores the understanding of the Constitution that underlies the Court\u27s claim to such exclusive authority. The Court\u27s recent decisions invalidating Section 5 legislation invoke the Constitution as a document that speaks only to courts. We call this vision the juricentric Constitution. The juricentric Constitution imagines the judiciary as the exclusive guardian of the Constitution. It allows the Court\u27s coordinate branches to enforce the Constitution only insofar as they enforce judicial interpretations of constitutional meaning, an approach that radically circumscribes Congress\u27s power under Section 5 of the Fourteenth Amendment. The Court justifies these restrictions in a way that fundamentally misdescribes American constitutional culture, as we show by examining constitutional practice during the closing decades of the twentieth century, when the Court regularly looked to Congress to anchor and orient its constitutional judgments. We advance this argument in three stages

Visuomotor Crowding: The Resolution of Grasping in Cluttered Scenes

Reaching toward a cup of coffee while reading the newspaper becomes exceedingly difficult when other objects are nearby. Although much is known about the precision of visual perception in cluttered scenes, relatively little is understood about acting within these environments – the spatial resolution of visuomotor behavior. When the number and density of objects overwhelm visual processing, crowding results, which serves as a bottleneck for object recognition. Despite crowding, featural information of the ensemble persists, thereby supporting texture perception. While texture is beneficial for visual perception, it is relatively uninformative for guiding the metrics of grasping. Therefore, it would be adaptive if the visual and visuomotor systems utilized the clutter differently. Using an orientation task, we measured the effect of crowding on vision and visually guided grasping and found that the density of clutter similarly limited discrimination performance. However, while vision integrates the surround to compute a texture, action discounts this global information. We propose that this dissociation reflects an optimal use of information by each system