Our Rhizomatic Constitution – Harvard Journal on Legislation

Radhika M. Kattulla [*] View PDF

Abstract

The text of Section 5 of the Fourteenth Amendment says that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Yet, since its inception, the word “enforce” has been the subject of great constitutional controversy: does the word give Congress the ability to define the scope of rights under the Fourteenth Amendment independently of the Supreme Court? Though that question remained unresolved for most of American history, the Rehnquist and Roberts Courts have formally answered the question with a resounding “no.”

This Article pushes back against that misreading of the Fourteenth Amendment and its history, as well as the Supreme Court’s recent mischaracterization of judicial review that underpins its misunderstanding of the congressional role under the Fourteenth Amendment. In doing so, this Article argues that a better understanding of our constitutional structure is that Congress and the Court must engage in a kind of dialogic and rhizomatic tug-of-war over the Fourteenth Amendment’s—and more broadly, the Constitution’s—meaning. This dialogue is necessary to ensure that neither branch can deprive a person of life, liberty, and property, or deny the equal protection of our laws without being checked by the other. More than that, however, this Article fills a gap in legal scholarship by providing specific examples of how the dialogic model of constitutional interpretation has been carried out before in American history, and how it should be carried out going forward.

I. Introduction

“[I]f they were to be anything but ‘parasites’ on their society . . . [t]hey had to know the Constitution better than the Supreme Court had allowed it to be known and trust its precepts more than the framers had themselves.”

– Charles Hamilton Houston¹

It was March 12, 1990, and Congress had a problem waiting on its front steps.² Almost one year earlier, Senator Tom Harkin and Representative Tony Coelho jointly introduced a revised version of the Americans with Disabilities Act (ADA) to the 101st Congress.³ This time, however, the ADA’s sponsors had something they did not before: unusually strong bipartisan support and the endorsement of then-President George H.W. Bush.⁴ With such a broad coalition of support, the passing of the ADA seemed to be a given—the rules of bicameralism and presentment nothing more than a mere formality.

As expected, the bill passed the full Senate by an overwhelming majority.⁵ Getting the bill through the House, however, proved to be a more tortuous matter.⁶ Referred to an unprecedented four House committees, the bill became bogged down in subcommittee hearing after subcommittee hearing, and ultimately stalled in the House Committee on Public Works and Transportation⁷—a delay that occurred despite, as Representative Major R. Owens said of the bill at the time, “All the i’s hav[ing] been dotted and all the t’s hav[ing] been crossed.”⁸ By the spring of 1990, alarmed, the disability rights movement had had enough.⁹

That March, 475 disability rights activists and 1,000 more supporters peacefully congregated outside of the United States Capitol with one rather simple demand: the passage of the ADA.¹⁰ Towards the end of the rally, sixty of those protesters cast aside their wheelchairs and other mobility aids, and began to crawl up the seventy-eight marble stairs of the Capitol West Front, one-by-one.¹¹ Their struggle to make their way up the steps of their own government—plastered on television screens across America—“show[ed] the country what kinds of things people with disabilities have to face on a day-to-day basis.”¹² The “Capitol Crawl” forced Congress to respond.¹³

Just three months later, in a ceremony on the South Lawn of the White House, President Bush signed into law¹⁴ what has since been called “the most significant piece of civil rights legislation since the Civil Rights Act of 1964”¹⁵ and the “Emancipation Proclamation” for the disability community: the Americans with Disabilities Act of 1990.¹⁶ In rather “prosaic” language, the ADA codified a national “commitment to remove barriers and protect opportunities for all Americans to strive, achieve, and contribute up to their potential.”¹⁷ More than just “rewriting building codes and personnel manuals across America” to reflect the negative right of individuals with disabilities to be free from discrimination,¹⁸ the ADA went a step further. The statute also imposes affirmative obligations on both public and private entities to ensure equality.¹⁹

While there is much to say about the historic passing of the ADA, the incredible disability rights activism it required, as well as the ground-breaking vision of federal civil rights protections eventually embodied in its substantive provisions,²⁰ few have focused on how, in enacting the ADA, Congress joined the constitutional conversation on the status of disabled people that, at that point, had been dominated solely by the Supreme Court. As explained by Professors Katie Eyer and Karen M. Tani, the ADA’s drafters displayed remarkable awareness of, and responsiveness to, the Court’s recent constitutional jurisprudence²¹—at times acquiescing to the Court’s demands, while at others, completely repudiating them. For instance, in response to Justice William Rehnquist’s requirement in Pennhurst State School & Hospital v. Halderman (Pennhurst I)²²451 U.S. 1 (1978). that Congress clearly specify the constitutional provision that authorizes a piece of legislation, the ADA’s drafters explicitly “invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment” in Section 2 of the ADA.²³ In response to the Court’s many rulings that any abrogation of Eleventh Amendment immunity in statutes authorized by the Fourteenth Amendment requires a clear statement,²⁴ the ADA’s drafters also included a section titled “State Immunity.”²⁵

More controversial, however, was the ADA’s original “Findings and Purposes” section, which seemingly refuted one of the Court’s decisions from six years earlier.²⁶ In 1984, the Supreme Court in City of Cleburne v. Cleburne Living Center²⁷473 U.S. 432 (1985). held that individuals with disabilities are not a “quasi-suspect class,” warranting heightened scrutiny in the Equal Protection Clause analysis.²⁸ Unlike other suspect classes, such as race or sex, the disability community, the Court said, was too “large and diversified” and clearly not subject to “continuing antipathy or prejudice” given the existence of disability rights legislation like the Rehabilitation Act of 1973.²⁹ Regardless of the question of what form of scrutiny the Court actually applied to disability in Cleburne, the Court had at least facially rejected heightened scrutiny for people with disabilities.³⁰

Despite the Court’s precedent in Cleburne, Congress in the ADA went on to memorialize an alternative stance on the classification of individuals with disabilities under the Fourteenth Amendment.³¹ In the statute’s original “Findings and Purposes” section, the ADA’s drafters went line-by-line and addressed the Court’s reasoning in Cleburne.³² They wrote that “individuals with disabilities are a discrete and insular minority” that has been “subjected to a history of purposeful unequal treatment” and “relegated to a position of political powerlessness in our society” because of immutable “characteristics . . . beyond [their] control.”³³ In passing this language, the disability rights advocates and scholars argued, “Congress clearly intended to create a new protected class” and had subsequently ratcheted up the standard of review for disability-rights equal protection claims.³⁴ More significantly, through the ADA, the drafters had potentially resurrected the view that Congress has independent authority to interpret the Fourteenth Amendment.³⁵

The passing of the ADA settled that people with disabilities have a right to be free from discrimination under the law, while simultaneously unearthing a different, less easily resolvable constitutional question: to what extent does Congress have the authority to define for itself equal protection and due process violations under Section 5 of the Fourteenth Amendment? Although Section 5 explicitly vests Congress with “the power to enforce, by appropriate legislation” the guarantees of the Fourteenth Amendment,³⁶ the scope of its enforcement power has been a source of significant constitutional controversy since its ratification.

The idea that the word “enforce” permits Congress to not only enact remedial congressional legislation but to also define rights themselves excites controversy for two reasons. First, as prominent legal scholar and former Solicitor General of the United States, Archibald Cox, once explained, our legal tradition has long committed constitutional interpretation to the federal judiciary³⁷—an understanding commonly traced back to Chief Justice John Marshall’s famous pronouncement in Marbury v. Madison³⁸5 U.S. (1 Cranch) 137 (1803). that it is “the province and duty of the judicial department to say what the law is.”³⁹ By extension, congressional interpretation of the Fourteenth Amendment would appear to be incongruent with the contours of judicial review established in Marbury.⁴⁰ Second, most participants in the heated debate on the question of which branch is the proper constitutional interpreter believe that there can only be one authoritative interpreter of the Constitution.⁴¹ The idea that multiple branches of government can concurrently interpret the Constitution in a collaborative dialogue seems to violate the minor premises of both judicial supremacists⁴² and many modern legislative constitutionalists who argue that Congress has the authority to define the nation’s highest law.⁴³

Despite the amount of ink spilled defending one-branch supremacy—often judicial supremacy, though not always—this Article makes exactly the inverse argument: the structure of our constitutional system and principles of good institutional design demand a kind of dialogic and interpretive tug-of-war between both the Supreme Court and Congress—something that the ADA’s drafters clearly understood in 1990. With regard to the Fourteenth Amendment specifically, the interaction of competing viewpoints advanced by these two separate, but coordinate, interpreters is necessary to ensure that neither branch can deprive a person of life, liberty, and property, or deny the equal protection of our laws without being checked by the other.⁴⁴

The dialogic model of interpretation is nothing new—both in terms of American constitutional law as well as from a larger, bird’s-eye view of nature and philosophy. In the 1980s, the postmodern French philosophers Gilles Deleuze and Félix Guattari differentiated between the “arborescent” classic Western philosophy—in which knowledge and thinking are seen as growing hierarchically and linearly from a single origin point like a tree—and what they called “rhizomatic” philosophy, or the perspective that knowledge develops horizontally, shooting off its roots in every which way until a complex, infinite network of information forms.⁴⁵ Deleuze and Guattari explained that “[a] rhizome has no beginning or end; it is always in the middle, between things, interbeing, intermezzo. The tree is filiation, but the rhizome is alliance, uniquely alliance.”⁴⁶ Over the years, constitutional law has been characterized by arborescent thinking. Lawyers, scholars, and judges have fallen into the trap of believing that the Constitution can mean one thing and that that singular truth must be dictated to us by the first among equals branch of government: the judiciary.⁴⁷ But much like the rhizome Deleuze and Guattari described, the Constitution is fluid, ever evolving, and non-hierarchical. Its true meaning exists in the interstices of the different branches of government rather than being rooted in a single source of power indefinitely.

In exploring the rhizomatic nature of our Constitution, this Article proceeds as follows. Part I tracks judicial and congressional perception of the term “enforce” in Section 5 over time, starting with the understanding of the Fourteenth Amendment’s drafters during the Reconstruction Era and ending with the modern Court’s narrow construction of the term. Part II rejects the philosophy of judicial supremacy that has leached into arguments against Congress’ ability to define the scope of the Fourteenth Amendment’s protections. Finally, Part III explores how Congress interpreting the Fourteenth Amendment in tandem with the Supreme Court would functionally play out.

II. Defining “Enforce” in Section 5 of the Fourteenth Amendment

As Professors Eyer and Tani explain, litigators immediately took notice of the ADA’s “Findings and Purposes” section.⁴⁸ Specifically, they began arguing that the ADA changed the standard of review for disability-based equal protection claims.⁴⁹ Less than six months after the ADA’s passage, the California Association of the Physically Handicapped, for instance, petitioned the Supreme Court arguing just that.⁵⁰ The advocates claimed that “Congress has determined that disabled Americans should have their equal protection claims subjected to strict scrutiny” and that “[t]he Court should defer to this finding since Congress is particularly well suited to evaluate the extent to which disabled Americans have been relegated to a position of political powerlessness in our society.”⁵¹ Though the Court ultimately denied the petition,⁵² the argument had been made: Congress had openly disagreed with the Court on the demands of the Fourteenth Amendment through the ADA.

More than just denying cert petitions, though, the Court eventually foreclosed these types of legislative constitutionalist arguments altogether. In 1993, the Court in Heller v. Doe⁵³509 U.S. 312 (1993). considered a challenge to Kentucky’s involuntary civil commitment statutory scheme, which differentiated between adults with mental illnesses and those with intellectual disabilities. In their brief, the plaintiffs borrowed from litigators before them and argued that the Court should be “[m]indful of the prerogatives of a co-equal branch of government” by “tak[ing] into account the intention of Congress, implicit in the findings which preface the Americans With Disabilities Act of 1990, that classifications burdening persons with disabilities be given the higher scrutiny reserved for discrete and insular minorities.”⁵⁴ Ultimately, however, the Court ignored this argument and upheld the Kentucky scheme under rational basis review.⁵⁵

The Court’s implicit rejection of the argument that Congress could, for example, change the level of review accorded to a law under the Equal Protection Clause by the Supreme Court, fits well within the Court’s current narrow construction of Section 5 and congressional power more generally.⁵⁶ Whether it comports with historical understandings of the Section 5 enforcement power, however, is a different matter.⁵⁷ This Part describes the ambiguity inherent in the original understanding of Section 5 and how the Court has struggled at various times to reconcile that ambiguity. In doing so, this Part establishes that, at best, contemporaries and even some later Courts and Congresses believed the term “enforce” in Section 5 conferred broad congressional enforcement power, and at worst, the term has been so open to interpretation that Congress claiming such a broad power is not heretical.

A. The Reconstruction Period

More than 80 years after the Fourteenth Amendment was ratified, the Court handed down its famous decision in Brown v. Board of Education⁵⁸347 U.S. 483 (1954). “that in the field of public education, ‘separate but equal’ has no place.”⁵⁹ But before reaching that landmark conclusion, Chief Justice Earl Warren took a slight detour.⁶⁰ On re-argument of the case, the Court had asked both parties to focus largely on the ratification history of the Fourteenth Amendment.⁶¹ Yet, despite the “exhaustive[] consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment,” Chief Justice Warren ultimately found the ratification history to be “[a]t best . . . inconclusive.”⁶² As Chief Justice Warren helpfully explained:

The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.⁶³

Though Chief Justice Warren warned that “we cannot turn the clock back to 1868 when the Amendment was adopted,”⁶⁴ the Court has attempted to do just that in numerous cases since then. In the 1960s, the Court relied on the 39th Congress’ debates to argue that “[a] construction of Section 5 that would require a judicial determination that the enforcement of the state law . . . violated the Amendment” would contravene the framers’ intent to assign the responsibility of implementing the Amendment to Congress.⁶⁵ Towards the end of the century, the Court flipped and began arguing the exact opposite—that the Amendment’s framers intended, as indicated by their revisions of the Fourteenth Amendment, to confer upon Congress not “plenary but remedial” power to “make the substantive constitutional prohibitions [determined by the Court] against the States effective.”⁶⁶ Put differently, both sides over the years have cherry-picked various snippets of the imprecise “mass of evidence” that is the ratification history of the Fourteenth Amendment⁶⁷ to argue with absolute certainty that the role of Congress in interpreting the Fourteenth Amendment has been long-settled—a line of reasoning the Court explicitly rejected in Brown.⁶⁸

In analyzing the original understanding of the Fourteenth Amendment, this Section does not take an originalist view. Rather, I aim to neutralize a narrow understanding of the Fourteenth Amendment that has emerged in recent years. Recognizing the different possible interpretations of Section 5 of the Fourteenth Amendment that have existed since its inception much like the Warren Court did in Brown helps us craft an interpretation in a way that “endure[s] for ages.”⁶⁹ After all, as Chief Justice Marshall admonished us, “it is a constitution we are expounding.”⁷⁰

1. The Bingham Proposal

While the Senate was busy considering the Freedmen’s Bureau and Civil Rights Bills, Representative John A. Bingham of Ohio proposed a new amendment to the Constitution on January 12, 1866.⁷¹ His proposal stated that “[t]he Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property.”⁷² After some back-and-forth in the Joint Committee on Reconstruction, the final language of the proposal sent to the full House Floor changed only slightly:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment).⁷³

The implications of Bingham’s language “with regard to congressional power and federalism were shocking.”⁷⁴ That was because Bingham, “[a] shrewd . . . and successful railroad lawyer,”⁷⁵ had copied the breadth of the language in the Necessary and Proper Clause in his proposal.⁷⁶ Some Radicals, like William D. “Pig-Iron” Kelley of Pennsylvania, argued “the amendment would add no new powers whatever to those Congress already possessed” and instead was simply “declarative.”⁷⁷ That argument comports with the text of the Necessary and Proper Clause itself,⁷⁸ and Bingham himself seemed to believe that when he explained to the House that “[e]very word of the proposed amendment is to-day in the Constitution of our country, save the words conferring the express grant of power upon the Congress of the United States.”⁷⁹ However, many of their fellow congressmen saw in the proposed amendment an unprecedented expansion of congressional power.⁸⁰

Yet, in the context of the past four years with the Civil War, and even the abolitionist struggle prior to the war, the sheer breadth of Bingham’s initial proposal is actually not that surprising. For years, abolitionists had worked to “revitalize[] doctrines of equality and natural rights under a literal interpretation of the Declaration of Independence which applied to all men, black or white, and made slavery a nullity as a violation of the laws of nature”—work that congressmen like Bingham took notice of when they argued that a new amendment was necessary to ensure that “all men, before the law, are equal in respect of those rights which God gives and no man or state may rightfully take away except.”⁸¹ These abolitionists saw plenary congressional power as a necessity to enforce the guarantees of equality in the Constitution once and for all.⁸²

Moreover, many members of the 39th Congress displayed a “deep-seated mistrust of the judiciary.”⁸³ As Professor Robert Harris explained, the “Former Abolitionists” who predominated in the 39th Congress “had not forgiven the Court for its decision in the Dred Scott case or for Chief Justice Roger B. Taney’s circuit court opinion in Ex parte Merryman.”⁸⁴ Or, as Professor Joseph James noted, the “decisions of courts had not normally favored abolitionists before the war. There was consequently little inclination to bestow new powers on the judiciary, but rather to lean on an augmented power of Congress, if it could be controlled.”⁸⁵ The “necessary and proper” language appeared to remedy these concerns by instead expressly conferring upon Congress—not the courts—the broadest constitutional discretion possible.

However, Bingham’s proposal was certainly not without criticism. Some congressmen, including many of those eventually cited by the Supreme Court in the 1990s,⁸⁶ seemed to worry that such broad congressional power would lead to the federal compulsion of states in ensuring full political equality between the different races.⁸⁷ Representative Jackson Rogers of New Jersey worried that:

Congress would have power to compel the State to provide for white children and black children to attend the same school, upon the principle that all the people in the several States shall have equal protection in all the rights of life, liberty, and property, and all the privileges and immunities of citizens in the several States.⁸⁸

Representative Robert S. Hale of New York argued that because the Amendment “gives to all persons equal protection,” its effect would be to supplant “all State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen . . . [with] the law of Congress established instead.”⁸⁹ And Representative Thomas T. Davis, also of New York, “feared that the power would be used ‘in the establishment of perfect political equality between the colored and the white race of the South.’”⁹⁰ On the other side, one Radical, Representative Giles W. Hotchkiss, also of New York, even appeared to worry that Bingham had not been “sufficiently radical.”⁹¹ According to Representative Hotchkiss, Bingham’s decision to place the proposal’s guarantees of equality in the hands of a majoritarian institution like Congress hurt the civil rights cause instead.⁹² Together, these objections were enough to lead the House to table Bingham’s proposal until the following April.⁹³

2. The Fourteenth Amendment

On April 30, 1866, the Joint Committee reconvened and reported a new proposal to Congress.⁹⁴ In the new draft of the Amendment, one section stated that:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.⁹⁵

Another section prescribed that “Congress shall have power to enforce by appropriate legislation, the provisions of this article.”⁹⁶ This language, of course, is the one that now appears in the Fourteenth Amendment.⁹⁷

Missing from the final version of the Fourteenth Amendment, though, is the “necessary and proper” language from Bingham’s original proposal. What, then, is “[t]he significance of the defeat of the Bingham proposal”?⁹⁸ While some commentators, including some Justices, have since argued that the revision preserved judicial responsibility for enforcing legal equality, the congressional debates on the Amendment suggest instead that at least some members of Congress believed the Fourteenth Amendment codified broad congressional power.⁹⁹ For instance, Bingham himself, who remained heavily involved in the drafting of the revised Fourteenth Amendment, “contended that Congress had no less power to legislate under the fourteenth amendment than it would have had under his own earlier, rejected proposal. In other words, he attached no significance whatever to the defeat of that proposal.”¹⁰⁰ Other congressmen suggested the same. Representative Thaddeus Stevens remarked that:

[t]his Amendment allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford ‘equal’ protection to the black man. Whatever means of redress is afforded to one shall be afforded to all.¹⁰¹

Senator Jacob Howard of Michigan, who was cited by the Court at the peak of its optimism regarding congressional power in the 1960s,¹⁰² similarly argued that Section 1 of the Amendment “restrain[ed] the power of the States and compel[ed] them at all times to respect these great fundamental guarantees”—a directive that would be accomplished by Congress under Section 5, which constituted “a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.”¹⁰³ Therefore, regardless of the omission of the “necessary and proper” language in the final amendment, certainly some framers at the time of ratification believed that “Congress, and not the courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States”¹⁰⁴—that too, by all means necessary.¹⁰⁵

B. The Redemption Period

While the meaning of the Fourteenth Amendment still remained relatively ambiguous after ratification, the enacting Congress seemingly embraced the broad interpretation of the Amendment as it quickly passed a series of enforcement legislation, including the Enforcement Act of 1870, the Ku Klux Klan Act of 1871, and the Civil Rights Act of 1875.¹⁰⁶ Even the contemporaneous Supreme Court seemed to embrace the abolitionist interpretation of broad congressional power, as it initially treated congressional enforcement legislation similar to how the modern Supreme Court treats the political questions doctrine—a doctrine that suggests that some constitutional issues are better entrusted solely to another branch of government instead of the judiciary.¹⁰⁷ In upholding the Civil Rights Act of 1875, for instance, the Court in Ex Parte Virginia¹⁰⁸100 U.S. 339 (1879). explained that through the Fourteenth Amendment, “t is the power of Congress”—not “the judicial power”—“which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation.”¹⁰⁹ And in doing so, Congress’ Section 5 enforcement power extends to:

[w]hatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.¹¹⁰

In other words, according to the Court, what was needed to carry out the dictates of the Fourteenth Amendment through Section 5 was more a question to be answered by Congress in the first instance.

In retrospect, however, both Congress’ initial broad understanding of its new powers and the Court’s original deference to those congressional interpretations of the Fourteenth Amendment now seem more like temporary aberrations that vanished as soon as support for Reconstruction crumbled.¹¹¹ “On the whole, the judicial history of the Reconstruction civil rights legislation is one of the progressive dismantling by the courts of most of what Congress had attempted.”¹¹² In 1872, the Court in the Slaughterhouse Cases¹¹³83 U.S. (16 Wall.) 36, 78–79 (1873). read the Privileges or Immunities Clause of the Fourteenth Amendment to protect only the rights guaranteed by the federal government, not the individual states. In 1875, the Court in United States v. Cruikshank¹¹⁴92 U.S. 542, 554 (1875). hinted that the purpose of the Fourteenth Amendment was to give the federal government the means to ensure that states do not deny its citizens due process or equal protection. And in 1883, the Court reaffirmed this state action doctrine more clearly in the Civil Rights Cases¹¹⁵109 U.S. 3, 11 (1883). and United States v. Harris.¹¹⁶ Altogether, the Court in the Redemption Period wound up “adopting an extremely narrow view of the legitimate objects of the amendments” despite initially recognizing the broad scope of the Civil War Amendments.¹¹⁷ In the aftermath of this judicial dismantling, Congress began to backtrack on its use of its new powers under the Reconstruction Amendments as well.¹¹⁸

C. The Warren and Burger Courts

Though the Court had already begun to show signs of restricting congressional power under the Fourteenth Amendment more generally, the exact scope of the Section 5 enforcement power still remained relatively unaddressed by the 1960s.¹¹⁹ That silence, however, did not remain for very long.¹²⁰ Perhaps influenced by the Civil Rights Movement, the 1960s marked a time when both Congress and the Supreme Court sought to reinvigorate the Reconstruction Amendments’ full potential.¹²¹

In a prelude to its forthcoming Fourteenth Amendment jurisprudence, the Warren Court in South Carolina v. Katzenbach¹²²383 U.S. 301 (1966). upheld provisions of the Voting Rights Act of 1965 passed pursuant to Congress’ authority under the Fifteenth Amendment to ensure that the right to vote is not denied on the basis of race. The Voting Rights Act was, in part, enacted under Section 2 of the Fifteenth Amendment, which contains an enforcement provision that mirrors the language in Section 5 of the Fourteenth Amendment almost word-for-word: “The Congress shall have power to enforce this article by appropriate legislation.”¹²³ In interpreting Section 2, the Court rejected the idea that there are “any such artificial rules under § 2 of the Fifteenth Amendment” that suggest that “Congress may appropriately do no more than to forbid violations of the Fifteenth Amendment in general terms—that the task of fashioning specific remedies or of applying them to particular localities must necessarily be left entirely to the courts.”¹²⁴ Instead, the Court found that the Section 2 enforcement power was, in essence, as broad as Congress’ power under the Necessary and Proper Clause as explained by Chief Justice Marshall in McCulloch v. Maryland:¹²⁵ “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to the end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.”¹²⁶ The question that remained following the Court’s decision in South Carolina was whether Section 5 of the Fourteenth Amendment could also be read so broadly—a subject that Professor Laurence Tribe noted was “of even greater controversy than Congress’ power under the Fifteenth Amendment.”¹²⁷

The Warren Court wasted little time in answering that question. The same year it decided South Carolina, the Court addressed the scope of congressional power under the analogous Section 5 of the Fourteenth Amendment in Katzenbach v. Morgan.¹²⁸ The case involved a challenge to Section 4(e) of the Voting Rights Act, which effectively provided that no person who successfully completed the sixth grade in an accredited Spanish-language school in Puerto Rico could be denied the right to vote because of their inability to read or write English.¹²⁹ Registered voters in New York argued that Section 4(e)’s nullification of the state’s literacy test was unconstitutional under the Court’s decision in Lassiter v. Northampton County Board of Elections,¹³⁰ which held that literacy requirements did not violate the Equal Protection Clause.¹³¹ The Supreme Court disagreed.¹³² The majority of the Court, in an opinion written by Justice William Brennan, held that like Section 2 of the Fifteenth Amendment, Section 5 of the Fourteenth Amendment “is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.”¹³³ In other words, much like the abolitionists who supported Bingham’s original proposal for the Fourteenth Amendment, and those who continued to emphasize the broad sweep of congressional power after the proposal’s defeat, the Court argued that any legislation passed by Congress pursuant to its Section 5 power is constitutional as long as it meets McCulloch’s traditional rationality test—the same approach the Court had applied in South Carolina.¹³⁴

Justice Brennan offered two different rationales for why Congress could outlaw literacy tests despite the Court’s earlier decision in Lassiter.¹³⁵ First, Congress could provide a prophylactic remedy to the discriminatory treatment the Puerto Rican community residing in New York was experiencing by arming the “community [with] the right that is ‘preservative of all rights’”: the right to vote.¹³⁶ As explained by Professor Tribe, this theory rested upon Congress’ superior institutional ability “to find facts and frame remedies” and “marked no doctrinal advance beyond South Carolina v. Katzenbach.”¹³⁷

The second theory, however, recognized Congress’ role as a legitimate interpreter of the Constitution—in addition to the Court itself. Justice Brennan suggested it was Congress’ “prerogative” to determine for itself that an “application of New York’s English literacy requirement to deny the right to vote to a person with a sixth grade education in Puerto Rican schools in which the language of instruction was other than English constituted an invidious discrimination in violation of the Equal Protection Clause.”¹³⁸ This theory proved to be much more radical,¹³⁹ despite being one of the original possible interpretations of the Fourteenth Amendment.¹⁴⁰

For the next thirty-one years, the Court did little to clarify the meaning of the “Morgan power,” as the first theory came to be known.¹⁴¹ In 1970, the Court considered in Oregon v. Mitchell¹⁴²400 U.S. 112 (1970). the Voting Rights Amendments of 1970, in which Congress, among other things, reduced the minimum age to vote in both federal and state elections to 18 years. Congress justified this amendment on the grounds that 18-year-olds are mature enough to vote, therefore depriving them of the franchise amounts to an equal protection violation that Congress could fix under Section 5 of the Fourteenth Amendment.¹⁴³ Despite the Court’s earlier decision in Morgan, the Mitchell Court was sharply divided about the scope of the Section 5 enforcement power.¹⁴⁴ Five Justices wrote separate opinions, with no single opinion joined by more than three Justices.¹⁴⁵ Justice Black concluded that Congress, under Section 5, could change the voting age in federal, but not state or local elections, given that the latter are “preserved to the States by the Constitution” and Congress was not trying to “eliminat[e] discrimination on account of race”¹⁴⁶—a conclusion that all the other Justices rejected but wound up becoming the decisive holding of the case.¹⁴⁷

Though the significance of Mitchell is uncertain, some of the other Justices’ opinions shed light on the fact that at least some of the Warren Court Justices continued to stand by the earlier recognition of congressional power under Section 5 from Morgan. Justice Brennan, joined by Justices Byron White and Thurgood Marshall, wrote separately in Mitchell that “Section 5 empowers Congress to make its own determination on the matter,” especially given its superior fact-finding abilities.¹⁴⁸ In contrast to Congress, the judiciary, they explained, is an “inappropriate forum for the determination of complex factual questions of the kind so often involved in constitutional adjudication.”¹⁴⁹ Justice William Douglas also wrote separately to emphasize that because “[t]he powers granted Congress by Section 5 of the Fourteenth Amendment to ‘enforce’ the Equal Protection Clause are ‘the same broad powers expressed in the Necessary and Proper Clause,’” Congress could have “well conclude[d] that a reduction in the voting age from 21 to 18 was needed in the interest of equal protection.”¹⁵⁰

The Burger Court in the 1980s fared no better than the Warren Court in explaining Morgan. In Fullilove v. Klutznick,¹⁵¹ Chief Justice Burger wrote that with regard to its “authority to enforce equal protection guarantees,” “Congress not only may induce voluntary action to assure compliance with existing federal statutory or constitutional antidiscrimination provisions, but also, where Congress has authority to declare certain conduct unlawful, it may, as here, authorize and induce state action to avoid such conduct.”¹⁵² However, just three years later, Chief Justice Burger dissented in EEOC v. Wyoming,¹⁵³ writing for himself and three other Justices that he did not agree with the proposition “that Congress can define rights wholly independently of our case law.”¹⁵⁴ The persistent flip-flopping by Justices on the Court, like Chief Justice Burger, meant that the Court had left a vacuum of authority on how to understand the meaning of the Morgan power.¹⁵⁵

As they waited for guidance from the Court, legal scholars vigorously debated the Morgan power on their own.¹⁵⁶ What makes Congress a legitimate interpreter of the Constitution, if at all? Does the Morgan power align with our constitutional structure? If Congress could theoretically expand constitutional rights using the Morgan power, then could it also restrict them? Out of these debates, two main concerns emerged about the Morgan power. First, allowing a simple majority of Congress to define the meaning of entire constitutional provisions not only conflicts with Chief Justice Marshall’s emphatic assertion that it is “the province and duty of the judicial department to say what the law is,” but also undermines our whole constitutional structure by giving Congress the ability to circumvent the amendment process laid out in Article V.¹⁵⁷ Second, as Justice John Marshall Harlan II noted in his dissent in Morgan, the Morgan power also appears to give Congress the ability to contract constitutional guarantees.¹⁵⁸ After all, “n all such cases there is room for reasonable men to differ as to whether or not a denial of equal protection or due process has occurred, and the final decision is one of judgment.”¹⁵⁹ In the rush to allay these concerns, however, legal scholars—even those who defended Morgan—placed various limits on what the Morgan power could mean. Under the view of these scholars, the Morgan power became less a radical vision of Congress as an independent constitutional arbiter and more a principle of a kind of super-deference to Congress that began to resemble Professor James Bradley Thayer’s clear mistake rule: the Court “can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question.”¹⁶⁰

The criticisms and defenses of Morgan can largely be grouped into five separate categories. One defense of Morgan, proposed by Professor Cox, is that because Congress is simply a better fact-finder than the Supreme Court can ever be, the Court should defer to Congress’ findings.¹⁶¹ According to Professor Cox:

[c]ongressional supremacy, over the judiciary in the areas of legislative factfinding and evaluation and over the state legislatures under the supremacy clause in any area within federal power, would seem to be a wiser touchstone, more consonant with the predominant themes of our constitutional history, than judicially-defined areas of primary and secondary state and federal competence.¹⁶²

Put differently, armed with the power of subpoena and composed of members from a wide variety of backgrounds, Congress is better equipped to find the background facts in constitutional cases than an appellate court.¹⁶³ And, as other legal scholars like Professor Irving Gordon have explained, “where the judicial function depends on an assessment of underlying legislative facts, Congress, as a superior factfinding body, is permitted to exercise its power under section 5 of the fourteenth amendment.”¹⁶⁴ Under this understanding of Morgan, there is no conflict with Marbury because Congress is simply deciding questions of fact and not law.¹⁶⁵

Another theory of Morgan, however, is that Congress only has the power to define rights within the conceptual limits fixed by the Supreme Court—a view of congressional power that many abide by today. For instance, Professor Lawrence Sager argued that Congress can use its Section 5 power to “legislate against a broader swath of state practices than the Court has found or would find to violate the norm of equal protection.”¹⁶⁶ In doing so, Congress would be merely “enforcing a judicially unenforced margin of the equal protection clause and thereby moving our legal system closer to a full enforcement of an important but elusive constitutional norm.”¹⁶⁷ Congress could not, however, undo any determination the Court makes as to what does or does not violate the substantive norm of the Fourteenth Amendment.¹⁶⁸ This theory seems to be closer to what Justice Harlan II argued in his dissent in Morgan:

When recognized state violations of federal constitutional standards have occurred, Congress is of course empowered by § 5 to take appropriate remedial measures to redress and prevent the wrongs . . . But it is a judicial question whether the condition with which Congress has thus sought to deal is, in truth, an infringement on the Constitution, something that is the necessary prerequisite to bringing the § 5 power into play at all.¹⁶⁹

In this approach, the question of what the Fourteenth Amendment demands would always be determined in the first instance with an eye to what the Court has said or might say on the issue.

A third approach to Morgan focused on Congress’ ability to resolve conflicting principles better than the Supreme Court. Though arguing that the Court should not merely defer to Congress, Professor Robert Burt, for instance, noted that Congress’ greater flexibility in accommodating multiple conflicting interests makes Congress well suited to “serve as an adjunct” to the Court, helping it “refine [its] interpretations of the Constitution.”¹⁷⁰ Under Professor Burt’s view, Morgan can best be understood as helping facilitate an “ordered dialogue between Court and Congress on the detailed application of constitutional doctrine”—though the Court ultimately gets to set “the basic terms” for the resulting conversation.¹⁷¹

Another flavor of the third approach came from Professor William Cohen, who distinguished between decisions based on substantive rights and decisions concerned with questions of federalism.¹⁷² Because “Congress presumably reflects a balance between both national and state interests and hence is better able to adjust such conflicts,” “a congressional judgment resolving at the national level an issue that could—without constitutional objection—be decided the same way at the state level, ought normally to be binding on the courts.”¹⁷³ On the other hand, according to Professor Cohen, a “congressional judgment rejecting a judicial interpretation of the due process or equal protection clauses . . . is entitled to no more deference than the identical decision of a state legislature.”¹⁷⁴

The final hedge on the meaning of the Morgan power came from the majority opinion in Morgan itself. In response to the potential concern of the two-way ratchet, Justice Brennan added a footnote restricting Congress’ power under Section 5 to a one-way ratchet: “We emphasize that Congress’ power under § 5 is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.”¹⁷⁵ Though fixing a limit on the Morgan power, Justice Brennan’s footnote does not address the difficult question of how to tell which way the “due process or equal protection handle” “is turning.”¹⁷⁶ Inevitably, an expansion of rights for some can mean a contraction in rights for others.¹⁷⁷

All five of these approaches to Morgan are certainly permissible readings of the Court’s decision. In many ways, the original example of the ADA’s “Findings and Purposes” section posed at the start of this Essay, for instance, can easily be slotted away under many of these understandings of Morgan. Many disability rights advocates, in their briefs, for example, attempted to justify their argument that Congress had changed the standard of review in the “Findings and Purposes” section of the ADA by noting that Congress was merely exercising its fact-finding power, and the Court should take notice of that.¹⁷⁸ Putting aside Congress’ fact-finding abilities, even the argument that Congress sought to increase the standard of review for disability laws to heightened scrutiny is no longer radical because Congress is still operating within the tiers of scrutiny crafted by the Supreme Court—though these tiers are found nowhere in the text of the Constitution.¹⁷⁹

But there is one problem with all these theories: almost all of them appear to fall into the trap of one-branch supremacy, arguing a version of the Morgan power that fits with our current model of judicial supremacy. They are all still operating within a framework in which the other branches are subservient to the Court, admittedly, though with small grants of interpretive power to be used to urge the Justices to decide differently the next time. Even scholars that invoked the idea of Morgan standing for the principle of “cooperation”¹⁸⁰ or characterize the decision as an “invitation”¹⁸¹ for the two branches to engage in “contemporary constitutional dialogue”¹⁸² still subject Congress to a high level of judicial control, and inevitably always give the Court the final word in every resulting conversation.¹⁸³ But if carried to its fullest extent, the Morgan power has the potential to stand for much more than that. It can amount to a repudiation of judicial supremacy by, arguably rightfully, recognizing that Section 5 gives Congress the power to act as independent arbiter of the Fourteenth Amendment’s guarantees in addition to the Court itself. To do that, one must understand why judicial supremacy is a gross misunderstanding of our constitutional structure—a topic addressed in Part II of this Article.¹⁸⁴

D. The Rehnquist Revolution and Modern Constitutional Law

In the background of all this turmoil and confusion over the true meaning of Morgan—and, by extension, Section 5 of the Fourteenth Amendment—the composition of the Court changed.¹⁸⁵ In 1986, the same year Justice Antonin Scalia joined the Court,¹⁸⁶ then-Justice Rehnquist became Chief Justice.¹⁸⁷ In 1988, Justice Anthony Kennedy was appointed to the bench.¹⁸⁸ And in the early 1990s, Justices David Souter¹⁸⁹ and Clarence Thomas followed.¹⁹⁰ Before long, the Court was again composed of a conservative majority. The subsequent period on the Court—dubbed the “Rehnquist Revolution”—revived the power of the states at the expense of congressional power.¹⁹¹

The Rehnquist Court began by dramatically shrinking the scope of Congress’ powers under the Commerce Clause.¹⁹² From there on, it was only a matter of time before the Rehnquist Court set its sights on Congress’ Section 5 power.¹⁹³ That decision ultimately came in 1997 in City of Boerne v. Flores.¹⁹⁴

The story leading up to the Court’s infamous restriction of congressional power in City of Boerne actually starts seven years earlier with its decision in Employment Division, Department of Human Resources of Oregon v. Smith.¹⁹⁵ In that case, Alfred Smith, a drug counselor who had once struggled with alcoholism, had decided to return to his roots and join the Native American Church.¹⁹⁶ As a member of the church, Smith ingested peyote, a hallucinogenic, for sacramental purposes during a ceremony.¹⁹⁷ He was subsequently fired from his job and denied unemployment benefits by Oregon.¹⁹⁸ Though Smith recognized that the state’s controlled substance law appears to prohibit the use and possession of peyote, he argued that barring the use of peyote during church services violated the Free Exercise Clause.¹⁹⁹ The Court thought otherwise.²⁰⁰ Writing for the majority, Justice Scalia held that generally applicable laws, like the state statute at issue, are constitutional even when their enforcement burdens someone’s exercise of religion.²⁰¹ In rejecting Smith’s Free Exercise Clause claim, the Court, however, broke with the test it set forth in Sherbert v. Verner,²⁰² under which any governmental action that substantially burdens a religious practice must be justified by a “compelling state interest.”²⁰³

Almost immediately, a coalition “spann[ing] the religious right and the secular left” criticized the Court’s decision.²⁰⁴ In fact, the decision was so heavily condemned that Congress attempted to undo it by passing the Religious Freedom Restoration Act of 1993 (RFRA).²⁰⁵ According to Congress, “the Supreme Court [in Employment Division] virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion” by abandoning the compelling interest test²⁰⁶—“a workable test for striking sensible balances between religious liberty and competing prior governmental interest.”²⁰⁷ Because of the Court’s misstep, Congress sought “to restore the compelling interest test as set forth in Sherbert v. Verner.”²⁰⁸

Only a few years later, RFRA—and consequently, Congress’ mettle in rebuking the Court—was put to the test.²⁰⁹ In order to accommodate its growing parish, the Archbishop of San Antonio, Texas, applied for a building permit to enlarge its St. Peter Catholic Church in the City of Boerne.²¹⁰ Upon seeing the Archbishop’s plans for the church, city officials “became concerned that the new construction would destroy the old church’s appearance and would interfere with the city’s economic development plan, which was to promote tourism by preserving the area’s historic character.”²¹¹ The Boerne City Council proceeded to designate the church as a historic preservation area under its recently passed historic landmark zoning ordinance and subsequently denied the church’s permit.²¹² The church sued on the grounds that the city’s refusal to issue the permit violated RFRA.²¹³ The city, on the other hand, countered that in “enacting RFRA Congress exceeded the scope of its enforcement power under § 5 of the Fourteenth Amendment.”²¹⁴

In City of Boerne, the Supreme Court ultimately held RFRA unconstitutional.²¹⁵ But the decision’s implications affected much more than just RFRA. Though recognizing that “[t]here is language in [the Court’s] opinion in [Morgan] which could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in § 1 of the Fourteenth Amendment,” Justice Kennedy wrote for the majority that “[t]his is not a necessary interpretation . . . or even the best one.”²¹⁶ Instead, he argued, “[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary.”²¹⁷ Furthermore, to ensure that Congress stays within its designated constitutional role, the Court explained that in congressional measures enacted pursuant to Section 5, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”²¹⁸ In one fell swoop, the Court seemingly killed the Morgan power.

Subsequent cases only confirmed that “the most enduring part of Morgan is not its alternative holding that Congress may take a view different from that of the Court,”²¹⁹ but rather its first holding that Congress can enact remedial laws targeting violations of “court-articulated principles of equal protection.”²²⁰ In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,²²¹ for instance, the Court affirmed its holding in City of Boerne.²²² In that case, the Court struck down the Patent and Plant Variety Protection Remedy Clarification Act, saying that Congress cannot use its Section 5 power to “protect property interests that it has created in the first place under Article I.”²²³ In Dickerson v. United States,²²⁴ the Court, once again citing City of Boerne for the proposition that “Congress may not legislatively supersede [the Court’s] decisions interpreting and applying the Constitution,”²²⁵ struck down an act of Congress that conflicted with the rights detailed in Miranda v. Arizona²²⁶384 U.S. 436 (1966). for criminal suspects. That is, the Court held that Congress may not undermine the Court’s constitutional decisions, even though the Court in Miranda specifically “invited legislative action to protect the constitutional right against coerced self-incrimination” as long as that legislative alternative is “at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it.”²²⁷

In other words, the Rehnquist Court, for the first time, took the power of determining what constitutes an equal protection violation under the Fourteenth Amendment for itself. And in doing so, the Rehnquist Court swiftly rejected over a century’s worth of precedent and thought recognizing Congress’ role in constitutional interpretation of the scope of the Fourteenth Amendment.²²⁸

III. Reconciling a Broad Section 5 Power with Judicial Review

In taking an aggressive stance on the Court’s role in determining the scope of the Fourteenth Amendment, the Rehnquist Court threatened to undo numerous civil rights statutes—including the ADA. These statutes were created without legislative records equipped to appease the post-Boerne Court.²²⁹ And “[e]ven were it possible to squeeze out of these examples [in the legislative record] a pattern of unconstitutional discrimination,”²³⁰ statutes like the ADA would probably still fail the Boerne test of congruence and proportionality.²³¹ Why? Because the statutory remedies and duties created by these statutes “far exceed” what the Court is likely to find constitutionally required under the Fourteenth Amendment.²³²

And therein lies the problem. Implicit in the Rehnquist Court’s decisions like Boerne is not just a narrow reading of the Section 5 enforcement power that was never fully accepted by previous Congresses or Courts, but also a particular conception of judicial review—that of judicial supremacy. In claiming that “[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary,”²³³ the Rehnquist Court “monopolize[s] control over the Constitution.”²³⁴ And the Court did so by rewriting constitutional history to argue that our system of separation of powers demands that the judiciary have exclusive control over constitutional law. After all, as the Court notes, Chief Justice Marshall once stated in Marbury that “t is emphatically the province and duty of the judicial department to say what the law is”²³⁵—a line “that every lawyer and law student knows by heart, almost by instinct.”²³⁶

But what exactly did Chief Justice Marshall mean in Marbury? Everyone shares the baseline understanding that the Constitution is “the Supreme Law of the Land.”²³⁷ But who gets to decide when the Constitution has been violated? Chief Justice Marshall attempted to clarify just that in Marbury. In dicta, Marshall recognized that the plain language of the Supremacy Clause authorizes courts to invalidate legislation inconsistent with the Constitution²³⁸—a power that, as Justice Kennedy later explained, exists because “the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for [the Court] to admit inability to intervene when one [form] of Government has tipped the scales too far.”²³⁹

Yet, nothing in the text of Marbury itself suggests that the framers intended the Court to be the sole expositor of the Constitution’s meaning. Instead, the people, acting in union or through the various branches of government, have always been the ultimate expositors of the Constitution in our system.²⁴⁰ Because the Constitution is supreme to all other forms of law, Marbury stands for the modest proposition that courts, too, can evaluate the constitutionality of legislative acts.²⁴¹ Marbury affirms the “fundamental principle[] of our society”²⁴² that when the Constitution has been violated, the Court should not play the role of a helpless bystander, but rather can, and should, speak up as a coordinated branch of government accountable to the people. Put simply, courts share in the responsibility of ensuring that the Constitution—“the most direct expression of the people’s voice”—is enforced.²⁴³

And the idea that some constitutional decisions should be made in a dialogic “tug-of-war” with the other branches is certainly not a modern one either.²⁴⁴ That principle has been recognized throughout American history when the likes of Thomas Jefferson, Abraham Lincoln, and the Reconstruction Congress openly disagreed with the Court’s various pronouncements.²⁴⁵ Even the Supreme Court itself has appreciated that some constitutional decisions, like those related to political questions, are better answered by Congress or the President.²⁴⁶ Repeatedly, constitutional law over the years has been shaped by the understanding of the judicial role Marshall first posited in Marbury: the power of judicial review exists, but it is not so extensive as to decide constitutional questions definitively for all other political actors, including the people.

Yet, somehow, Marbury has come to stand for a much different proposition today. Though “[b]etween 1803 and 1887, the Court never once cited Marbury for the proposition of judicial review, even when the Court issued highly controversial decisions such as Dred Scott v. Sandford or the Civil Rights Cases striking down important congressional legislation,”²⁴⁷ today, Marbury is consistently cited by the courts for just that reason.²⁴⁸ Citing the magic words of Marbury has become a tactic to remind various actors of their supposed duty to submit to decisions of the Court, even when they disagree. For instance, the Court in Cooper v. Aaron²⁴⁹358 U.S. 1 (1958). in 1958 stated that Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution”—an idea that “has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”²⁵⁰ Or in City of Boerne, the Court cited Marbury for the proposition that “Congress could [not] define its own powers” under the Fourteenth Amendment, as it did exactly that in enlarging its own power.²⁵¹ Though “[w]e have never had [a] purely legal Constitution,” cases like these have turned over “stewardship of our Constitution . . . exclusively to lawyers and judges.”²⁵²

This Part pushes back against this rewriting of constitutional history and the rise of judicial supremacy that has been used to limit Congress’ power under Section 5 of the Fourteenth Amendment. Instead, I argue that though judicial review may have well become established in the system by the time of Marbury, the historical practice of judicial review looked much different from the way it is used today—and these early examples of judicial review give us a glimpse of what an open conversation between Congress and the Court on the scope of the Fourteenth Amendment could actually look like in practice.²⁵³

A. Judicial Review as a Political-Legal Act

Today, the Court is often painted as a counter-majoritarian institution.²⁵⁴ In fact, much of modern constitutional legal scholarship has focused on the tension between judicial review and the democratic process—a tension that Professor Alexander Bickel called the “counter-majoritarian difficulty.”²⁵⁵ As Professor Bickel explained, the “reality [is] that when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it.”²⁵⁶ On this view of the judicial role, it is no wonder why Professor Bickel and some other legal scholars have gone so far as to completely reject judicial review as part of the original understanding.²⁵⁷

But what if judges were not separate from, or antithetical to, the democratic process but rather a part of it? To understand why judges need not always play a counter-majoritarian role in our system, we need to go back to the beginning of early American history when the judicial role was largely accepted to have a political dimension to it. During the Revolution, the American opposition was initially “not only defended and justified in terms of the traditional constitution, but . . . was also waged on those terms.”²⁵⁸ In protesting the Stamp Act, for instance, Whig mobs not only made sure no stamped paper was available for use in legal proceedings, but they also actively called on judges to defy the unconstitutional Act.²⁵⁹ According to the protestors, because the Stamp Act was “utterly void, and of no binding Force,” “[they knew] Nothing of it”²⁶⁰ and argued that judges “should pay no Regard to it.”²⁶¹ While only a few courts in Massachusetts ended up joining the protest, the revolutionaries’ instinct to call on the courts heralded the first version of judicial review in American history: the idea that “judges, no less than anyone else, should resist unconstitutional laws.”²⁶²

Because they lacked the ability to challenge unconstitutional governmental action through peaceful, systemic means, the protestors ultimately had to resort to revolution. The effect of the American Revolution, however, was to make popular sovereignty the core and defining principle of American constitutionalism.²⁶³ As the colonies—and later the Constitutional Convention at the federal level—worked to create new legislatures, executives, and judiciaries after declaring independence, popular sovereignty became the background principle of every new constitution.²⁶⁴ As James Madison explained, even at the height of his anti-populism stance, constitutional meaning in the new democratic system could not be decided “without an appeal to the people themselves; who, as grantors of the commissions, can alone declare its true meaning and enforce its observance”²⁶⁵—a power that had been denied to them under the English constitution.²⁶⁶

In a framework that then makes the people the ultimate expositors of constitutional meaning, judicial review should be rooted in popular sovereignty too. In early American history, courts exercised judicial review, not because of some sort of special institutional competence, but rather because courts, as agents of the people, were also responsible for ensuring that the Constitution was enforced.²⁶⁷ In that sense, much like the few Massachusetts courts who joined the Whigs in their protest of the Stamp Act, the early courts that invalidated unconstitutional laws were simply “exercising the people’s authority to resist” ultra vires legislative acts by acting within the power delegated to them by the people.²⁶⁸ Unlike the popular resistance used during the Revolution, however, judicial review in this manner offered the people a peaceful avenue to be heard. That was certainly the understanding of the court in Trevett v. Weeden.²⁶⁹ In that case, the court struck down a Rhode Island statute that failed to provide the right to a jury trial, saying that “the people themselves will judge, as the only resort in the last stages of oppression” when “the Legislative [as] the supreme power in government, [has] violated the constitutional rights of the people;” but in the meantime they “refer those [laws] to the Judiciary courts for determination.”²⁷⁰ It was the case in 1786 when future-Justice James Iredell wrote that “judges, therefore, must take care at their peril, that every act of Assembly they presume to enforce is warranted by the constitution”—a power that “inevitably resulting from the constitution of their office, they being judges for the benefit of the whole people.”²⁷¹ And it was the case in Commonwealth v. Caton,²⁷² when the lawyer arguing the case, Edmund Randolph, justified the use of judicial review, saying the “bench too is reared on the revolution and will arrogate no undue power. I hold, then, that every law against the constitution may be declared void.”²⁷³ In this context, and countless other instances of judicial review before Marbury, judicial review was seen as “a political duty and responsibility rather than a strictly legal one.”²⁷⁴

This function of judicial review as a political-legal act lingers even today. Some legal scholars have suggested that the “Supreme Court often acts on behalf of a national political majority that has not yet worked its will through legislation.”²⁷⁵ Because some laws “are individually too petty, too diversified, and too local to get the attention of a Congress hard pressed with more urgent matters,”²⁷⁶ judicial review is just another way for members of the general population—whether one wants to call them “discrete and insular minorities,”²⁷⁷ or a majority that has simply not built up its political power yet—to create constitutional change and define constitutional meaning. From that perspective, the judiciary is another type of majoritarian institution that is supposed to enhance our democratic process, as the people work through judges just as they do through officials in the other political branches.²⁷⁸

In that way, popular constitutionalism in early American history looked a lot more like what is today called the theory of departmentalism,²⁷⁹ because all three branches, including the judiciary, are subordinate to the people, each department is duty bound to ensure that the Constitution—“the voice of the people themselves” and “the first law of the land”²⁸⁰—is enforced.²⁸¹ It does not follow from this delegation of power, however, that the judiciary “draws from the constitution greater powers than another” and could therefore decisively invoke the Constitution’s authority against another independent department of government.²⁸² As representatives of the people, each branch is responsible for upholding the Constitution.

B. Judicial Review Before Marbury

This understanding of the judicial role as another way for the people to decide the Constitution’s meaning is important in understanding why the courts can—and should—play a role in interpreting the Constitution, but why the judiciary’s interpretation cannot always be the most conclusive one. With this context of judicial review as originally seen as a political-legal act in mind, it becomes easier to see why an open conversation between Congress and the Court was possible in early American history—and why early jurists were so hesitant to exercise the power of judicial review.²⁸³

While judges are agents of the people and offer the people a means to exercise their will without resorting to outright resistance, they are expected to exercise judicial review only when a law is “unconstitutional beyond dispute” in the people’s eyes.²⁸⁴ Determining whether a law has come close to that threshold often requires a back-and-forth between courts, legislatures, and other system actors as seen in the examples below.

1. Rutgers v. Waddington

Some of the first state court experiments with judicial review “had their genesis in the anti-loyalist legislation enacted by many states in the waning days of the Revolutionary War.”²⁸⁵ Therefore, it is only fitting that one of the first examples of a dialogic tug-of-war between a court and legislature occurred in New York—the “loyalist ‘mecca’ during [the] seven years of British occupation.”²⁸⁶

With anti-British sentiments particularly high there, the New York state legislature enacted a list of acts directly targeting loyalists.²⁸⁷ One statute, the Trespass Act, provided that any New York resident who “by reason of the Invasion of the Enemy[] left his [or] her . . . Place[] of Abode” would have an action sounding in trespass “against any Person . . . who may have occupied, injured, or destroyed his [or] her . . . Estate . . . within the Power of the Enemy.”²⁸⁸ Rather pointedly, no defendant was allowed to plead “in justification, any military Order or Command whatever, of the Enemy, for such Occupancy, Injury, Destruction or Receipt.”²⁸⁹

Not every patriot supported the Act. Patriots like John Jay and Alexander Hamilton worried that penalizing loyalists would hurt the new country’s relationships with Europe by revealing that Americans were people “on whose engagement of course no dependence can be placed.”²⁹⁰ Rutgers v. Waddington²⁹¹There is no official report of the case. Documents from the case are collected in 1 The Law Practice of Alexander Hamilton 282–543 (Julius Goebel ed., 1964). gave these men the perfect vehicle to challenge the Trespass Act—and for our purposes, a closer look at the relationship between the judicial branch and the legislature that later informed Alexander Hamilton’s defense of judicial review during the ratification debates over the new Constitution.²⁹²

Rutgers involved an elderly patriot widow, Elizabeth Rutgers, who sought to recover rent from two British merchants, Benjamin Waddington and Evelyn Pierrepont.²⁹³ Rutgers and her husband had owned a brewery in Manhattan, but were forced to leave the property behind when they fled from the British troops occupying New York in 1776.²⁹⁴ Not long afterwards, the British Army seized the property and the civilian Commissary General licensed the brewery to the merchants in 1778.²⁹⁵ In 1780, the British Commander-in-Chief of North America took over and gave the merchants another license to occupy the property and began charging them rent.²⁹⁶ Once the Revolution ended, however, Rutgers eventually regained control of her property and commenced a lawsuit on the basis of the Trespass Act to recover the rent she had lost.²⁹⁷

Representing Waddington, Alexander Hamilton used the case to bring forward two constitutional challenges against the Trespass Act.²⁹⁸ First, he argued that the statute violated “the common law of . . . the law of nations” which had been adopted by the New York Constitution.²⁹⁹ Second, he argued that the statute violated the Treaty of Paris, which had concluded the Revolution and constituted binding national law upon the states.³⁰⁰ In essence, Hamilton made one of the first arguments that state court judges could disregard a state statute like the Trespass Act when it conflicted with national law: “When two laws clash that which relates to the most important concerns ought to prevail.”³⁰¹

Ultimately, the Mayor’s Court narrowly avoided Hamilton’s second argument and instead decided the case on the basis of the law of nations.³⁰² Only at the very end of the opinion did Chief Judge (and Mayor) James Duane address the question of judicial review first posed by Hamilton.³⁰³ He wrote:

[t]he supremacy of the Legislature need not be called into question; if they think fit positively to enact a law, there is no power which can controul them. When the main object of such a law is clearly expressed, and the intention manifest, the Judges are not at liberty, altho’ it appears to them to be unreasonable, to reject it: for this were to set the judicial above the legislative, which would be subversive of all government.³⁰⁴

Even then, the legislature decided to step in. Following the case, the state legislature released a resolution condemning the opinion as “in its tendency subversive of all law and good order, and lead[ing] directly to anarchy and confusion.”³⁰⁵ Soon after, the New York Packet & the American Advertiser printed an open letter from nine citizens denouncing the court for exercising its “power to set aside an act of the state,” and warned that “[s]uch power in courts would be destructive of liberty, and remove all security of property. The design of courts of justice . . . is to declare laws, not to alter them. Whenever they depart from this design of their institution, they confound legislative and judicial powers.”³⁰⁶ The backlash from the public at the mere idea of the court exercising its power of judicial review against the Trespass Act suggested that court might have overstepped its delegation of power.

2. Trevett v. Weeden

New York was not unique though. Something like Rutgers happened in Rhode Island, too. In 1786, after rural politicians ascended to the General Assembly, the legislature passed a statute authorizing the issuance of a hundred thousand pounds sterling of paper money in an attempt to resolve Rhode Island’s debt left over from the Revolution.³⁰⁷ And because the law was much opposed by creditors and merchants, the legislators, for good measure, passed another statute that imposed heavy fines “on those who did not accept the state’s paper money as equivalent to gold or silver” and specified that actions to challenge the fine should be tried without a jury and go without appeal.³⁰⁸

When John Weeden, a butcher in Newport, refused to accept paper bills from John Trevett in exchange for meat sold in his shop, Trevett sued under the paper money laws.³⁰⁹ And much like Hamilton in Rutgers, James Varnum, a former general in the Continental Army and member of Rhode Island’s legislature, sprang to Weeden’s defense and, in doing so, advanced various approaches to judicial review.³¹⁰ Varnum appealed to some combination of natural law and the Rhode Island Constitution in arguing why the Superior Court of Judicature should set aside the paper money laws of 1786.³¹¹ He said,

But the Judges, and all others, are bound by the laws of nature in preference to any human laws, because they were ordained by God himself anterior to any civil or political institutions. They are bound, in like manner, by the principles of the constitution in preference to any acts of the General Assembly, because they were ordained by the people anterior to and created the powers of the General Assembly.³¹²

Therefore, “[t]he Judiciary . . . cannot admit any act of the Legislature as law, which is against the constitution.”³¹³

Though Varnum had argued that the court could exercise judicial review because judges were “ordained by the people,” the legislature, also ordained by the people, still retained the ability to question the court in the aftermath of the court’s decision.³¹⁴ After the decision was announced, “the governor convened a special meeting of the legislature” and “summoned the court to explain its action.”³¹⁵ The General Assembly then proceeded by entering its dissatisfaction with the court’s decision into the record and even “entertained a motion to dismiss the entire bench.”³¹⁶ Eventually, the legislature replaced four out of the five judges on the bench during the next election.³¹⁷ Like Rutgers, once again here, the legislature stepped in as a coordinate branch to denounce the court’s decision in Trevett.

3. The Respectful Remonstrance of 1788 & Kamper v. Hawkins

The next example demonstrates how the early courts engaged in constitutional dialogue with a legislature without necessarily exercising judicial review in the first instance. In 1788, the Virginia legislature passed a statute requiring court of appeals judges to sit as district court judges.³¹⁸ The appellate judges challenged the statute as an unconstitutional diminution in their salaries.³¹⁹

Instead of striking the statute down through judicial review, however, the judges did something rather unthinkable in modern times. They began by refusing to hire clerks and then issued “The Respectful Remonstrance of the Court of Appeals” instead.³²⁰ Written by Chancellor Edmund Pendleton and formally addressed to the General Assembly, the Remonstrance asked the state legislators to correct their mistake and repeal the statute.³²¹ Otherwise, the judges

[saw] no other alternative for a decision between the legislature and judiciary than an appeal to the people, whose servants both are, and for whose sakes both were created and who may exercise their original and supreme power whensoever they think proper. To that tribunal, therefore, the court, in that case, commit themselves, conscious of perfect integrity in their intentions, however, they may have been mistaken in their judgment.³²²

The legislature responded to the Remonstrance by “suspending the challenged act and passing a new court reorganization law designed to meet the judges’ objections.”³²³

Desperate to staff and run the new district court more efficiently, however, the legislature changed the law once more.³²⁴ In 1789, the legislature gave district court judges the power to issue injunctions—a power that, at that point, had only been exercised by the high court of chancery.³²⁵ The validity of the law came before the General Court in 1793 in Kamper v. Hawkins,³²⁶ where this time, having had enough of the legislature’s missteps, the judges exercised the power of judicial review, as opposed to a “straight political appeal[] as it had done five years earlier.”³²⁷ The unanimous court invalidated the statute.³²⁸

As noted by many other scholars, Kamper is significant for providing one of the most detailed discussions on the bounds of judicial review up to that point.³²⁹ In context, though, Kamper is also noteworthy because it demonstrates how the judges only relied on judicial review after engaging in extensive discussion with the legislature about the latter’s ability to restructure the state judiciary. Rather than outright invalidating the legislature’s actions and attempting to settle the debate the way modern courts do, the judges in the Remonstrance and on the Kamper Court demonstrated the power of judicial intervention and open dialogue with the legislature when they suspect a piece of legislation is unconstitutional.

4. Hayburn’s Case

Up to now, we have discussed judicial review of state statutes. Hayburn’s Case³³⁰2 U.S. (2 Dall.) 409 (1792). is one of the first cases in which the Supreme Court exercised judicial review against a federal statute.³³¹ In 1792, Congress enacted the Invalid Pensions Act, which required pension applicants to first appear before their respective circuit court.³³² The circuit court was then supposed to inform the Secretary of War if an individual was eligible for a pension, who would then inform Congress if the individual was not.³³³

Before any case had even been brought before it, the Circuit Court for New York wrote to President George Washington that the statute was likely unconstitutional. The judges wrote, “neither the legislative nor the executive branches, can constitutionally assign to the Judicial any duties, but such as are properly judicial, and to be performed in a judicial manner.”³³⁴ In other words, much like the court in the Remonstrance, the Circuit Court for New York started its challenge with a purely political appeal—this time to the President.

Not long thereafter, the validity of the statute actually came before another circuit court. Justices James Wilson and John Blair, and Judge Richard Peters of the Circuit Court for the District of Pennsylvania, decided not to consider William Hayburn’s pension application.³³⁵ Their decision almost immediately sparked debate on the House Floor.³³⁶ Some members even raised the possibility of impeachment,³³⁷ though others engaged in more mild criticism, hinting that the decision was “indiscreet and erroneous.”³³⁸ Much like with Rutgers, the press also joined the conversation.³³⁹ The General Advertiser reported, “[t]his being the first instance, in which a court of justice had declared a law of Congress to be unconstitutional, the novelty of the opinion produced a variety of opinions with respect to the measures to be taken on the occasion.”³⁴⁰

In response to these grumblings, a week later, Justices Wilson and Blair and Judge Peters wrote a letter to President Washington explaining their decision.³⁴¹ Largely echoing what the Circuit Court for New York had written to Washington earlier, the judges wrote that “[b]ecause the business directed by this Act is not of a judicial nature: it forms no part of the power vested, by the Constitution, in the Courts of the United States: The Circuit Court must, consequently have proceeded without constitutional authority.”³⁴²

Eventually, even the Circuit Court for North Carolina joined the debate, sending yet another advisory opinion to President Washington before a case had appeared before it, much like the Circuit Court for New York.³⁴³ Like both Circuit Courts before them, the North Carolina Circuit Court suggested the statute was unconstitutional because it gave circuit courts a “[p]ower not in its nature Judicial.”³⁴⁴ In so arguing, the Circuit Court emphasized the independence of each branch: “That the Legislative, Executive, and Judicial Departments are each formed in a separate and independent manner . . . .”³⁴⁵

After all this, Hayburn eventually took the case to the Supreme Court.³⁴⁶ Even there, however, before the Court had even heard the case, five of the six Justices indicated in letters that they believed the statute was unconstitutional.³⁴⁷ The last Justice, Justice Thomas Johnson, ultimately sided with the others after refusing to consider pension petitions while riding circuit soon thereafter, stating that “this Court cannot constitutionally take Cognixance” of the petitions.³⁴⁸ Instead of formally deciding to strike down the statute once and for all in unanimity, however, “the Court decided to delay to see if Congress would respond to the constitutional concerns that had been raised and repeal the Invalid Pensions Act.”³⁴⁹ Taking notice of the Justices’ rather public positions, in 1793, Congress repealed the 1792 Act, thereby mooting Hayburn’s Case.³⁵⁰ In other words, the very first case in which the Supreme Court and other federal circuits challenged the validity of a congressional statute involved a kind of judicial review that gave room for Congress to respond—just like many cases of earlier state courts who used, or verged on using, the power of judicial review.

More broadly though, Rutgers, Trevett, Kamper, and Hayburn’s Case reveal that judicial review had been established long before Chief Justice Marshall joined the Supreme Court and penned his famous line in Marbury. Yet, the form that judicial review took is unimaginable today: judges invalidated statutes by engaging in political discourse with the other branches of government—not avoiding it. And this version of judicial review was so well accepted that by the time Marbury was decided and Marshall “chose to use the case to expound on the independent authority of the Court[, he too,] decided to act not only in a judicial manner but in a political one as well.”³⁵¹ “Marshall understood that constitutional questions needed to be shared with Congress and the President.”³⁵²

C. Constitutional Interpretation by Other Branches

This understanding of judicial review as a limited political-legal act not binding on other branches continued into the turn of the century. The examples below describe two moments in history when institutions and political actors, aside from the courts, claimed the ability to interpret the Constitution for themselves. These examples demonstrate, once again, the limited scope of judicial review in early American history—or at the very least, that the bounds of judicial review were still hotly debated then, unlike today.

1. The Kentucky and Virginia Resolutions

In 1798, the Federalist-controlled Congress passed four separate laws called the Alien and Sedition Acts during an undeclared war between the United States and France.³⁵³ The Alien Acts gave the President the power to detain and deport foreigners who were considered dangerous to the country.³⁵⁴ The Sedition Act made it a crime to publish false, scandalous, or malicious things about the U.S. government.³⁵⁵

Fearing that they themselves would face prosecution, Thomas Jefferson and James Madison secretly penned what came to be known as the Kentucky and Virginia Resolutions challenging the constitutionality of these laws.³⁵⁶ At the time, state resolutions challenging the federal government were not necessarily groundbreaking: this was how Americans protested the Stamp Act; how Federalists in 1788 answered the Anti-Federalists’ complaints that the new Constitution would weaken state power; how Pennsylvania protested the 1791 excise tax; and how Virginia opposed the Jay Treaty.³⁵⁷ Yet, by 1798, something had changed.³⁵⁸ Ten states, all dominated by Federalists, released their own resolutions censuring Kentucky and Virginia.³⁵⁹ Some, like Rhode Island, went as far as to argue that the Constitution “vests in the federal courts, exclusively, and in the Supreme Court of the United States, ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States”³⁶⁰—an early seed of judicial supremacy that Madison vehemently rejected in his Report of 1800 for the legislature of Virginia.³⁶¹

Today, the Kentucky and Virginia Resolutions are largely taught in law school classrooms as an example of the defeat of the problematic and now much-derided philosophy of concurrent majoritarianism, in which states can interpret the Constitution for themselves.³⁶² Less talked about, though, is how much more modest the Kentucky and Virginia Resolutions actually were. Instead of claiming the states’ outright ability to invalidate federal legislation, the Kentucky and Virginia legislatures “resolved merely to transmit their objections to the states’ representatives in Congress and to other states, so that all could jointly urge federal lawmakers to repeal the offending legislation” after expressing their disagreement through their resolutions.³⁶³ Rightly or wrongly, Jefferson and Madison sought to use their representatives in Congress to express their will and their doubts about the constitutionality of the Alien and Sedition Acts. In doing so, they denied “that the judicial authority is to be regarded as the sole expositor of the constitution[,]”³⁶⁴ as some states like Rhode Island had argued in their own resolutions, and instead aimed to initiate a conversation between Congress—in its representative capacity of the states’ interests—and the Court about what the Constitution demands in this particular scenario.

2. Dred Scott v. Sandford, Lincoln, and the Reconstruction Congress

Modern judicial supremacy of the sort Rhode Island first wrote about in its resolution more firmly took shape in one of the most infamous Supreme Court decisions: Dred Scott v. Sandford.³⁶⁵ Writing for the majority, Chief Justice Roger Taney said that the federal government lacked the ability to abolish slavery as Black people were not citizens under the Constitution.³⁶⁶ Rather than stop there, though, Chief Justice Taney then held that the Missouri Compromise of 1820 was unconstitutional—marking the second time in American history that the Court struck down a federal law.³⁶⁷ To this day, Dred Scott remains “a significant blot on [the Court’s] record, frequently referred to as a basis for doubting the Court.”³⁶⁸ Yet, many today also accept without question Chief Justice Taney’s underlying premise that the Court can determine constitutional meaning for everyone.

When Dred Scott was decided, however, it was widely criticized.³⁶⁹ Many at the time viewed “judicial decisions . . . as nothing more than an imposition of the Justices’ own views.”³⁷⁰ Only a year after Dred Scott was decided, for instance, Stephen Douglas in the 1858 Illinois Senate race defended Dred Scott by arguing that:

t is the fundamental principle of the judiciary that its decisions are final. It is created for that purpose so that when you cannot agree among yourselves on a disputed point you appeal to the judicial tribunal which steps in and decides for you, and that decision is binding on every good citizen.³⁷¹

His opponent in the race, Lincoln, disagreed.³⁷² According to Lincoln, the Court’s decision was “decided in favor of Dred Scott’s master and against Dred Scott and his family” and therefore binding on the parties to the case.³⁷³ But he:

oppose[d] [Dred Scott] . . . as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.³⁷⁴

“‘[T]he people will have ceased to be their own rulers’ if ‘the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions.”³⁷⁵ Years later, Lincoln tested that theory when he, as President, signed one of the most celebrated documents in American history: the Emancipation Proclamation.³⁷⁶

Moreover, the Civil War and Reconstruction Congresses ratified Lincoln’s views by proceeding to overrule Dred Scott themselves in their own way.³⁷⁷ In 1862, Congress abolished slavery in the District of Columbia and the federal territories.³⁷⁸ In 1866, Congress recognized Black people as citizens of the United States.³⁷⁹ In 1870 and 1871, Congress sought to enforce the mandates of the newly-ratified Fourteenth and Fifteenth Amendments through the Enforcement Act and the Ku Klux Klan Act.³⁸⁰ And in 1875, Congress guaranteed Black people equal treatment in public transportation and accommodations.³⁸¹ To accomplish any of this, Congress and President Lincoln had to openly defy existing Supreme Court precedent. Yet, because both branches chose to interpret the Constitution for themselves and on behalf of the American people, the country was able to begin the process of building a multiracial democracy.

IV. Imagining a Conversation Between Congress and the Court

More than a hundred years after President Lincoln, President Ronald Reagan’s Attorney General, Edwin Meese III, attempted to make the same argument: “[h]owever the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the Court.”³⁸² To think otherwise, Meese said, echoing Lincoln, would be “to submit to government by judiciary . . . [and] would be utterly inconsistent with the very idea of the rule of law to which we, as a people, have always subscribed.”³⁸³ Like Lincoln in the 1850s, Meese in 1986 suggested that, because Supreme Court decisions are binding only on the parties to suit, the Court cannot be the only interpreter of the Constitution.³⁸⁴

Yet, somewhere between the Civil War and the swearing in of Chief Justice Rehnquist and Justice Scalia, Lincoln’s message to the country got lost. The argument that the Constitution itself is above the decisions of the Court provoked intense criticism.³⁸⁵ Eugene C. Thomas, then-president of the American Bar Association, asserted in response that “Supreme Court decisions are indeed the law of the land and that ‘public officials and private citizens alike are not free simply to disregard’ their status as law.”³⁸⁶ Ira Glasser, then-executive director of the American Civil Liberties Union, said Meese’s speech was an “invitation to lawlessness” and “a call to defiance and to undermining the legitimacy of abiding by decisions that you disagree with.”³⁸⁷ And Anthony Lewis, writing for the New York Times, “accused the Attorney General of ‘making a calculated assault on the idea of law in this country: on the role of judges as the balance wheel in the American system.’”³⁸⁸ The criticism was so intense that Meese had to back down from his original position and publicly concede that the Court’s decisions “are the law of the land” and “do indeed have general applicability.”³⁸⁹ No public servant has since dared to stray far from the principle of judicial supremacy³⁹⁰—so much so that by the time disability rights activists, in a last ditch effort, attempted to get the Court to recognize the change in the standard of review for disability status engendered by Congress in the ADA, any specter of legislative constitutionalism was basically a dead letter.

What happened? Some blame the Warren Court.³⁹¹ In 1958, Arkansas governor Orval Faubus violated a federal court order by ordering the Arkansas National Guard to prevent nine Black students from desegregating Central High School in Little Rock.³⁹² In attempting to enforce Brown, though, the Warren Court put its decision on par with the Constitution itself, citing Marbury for a proposition that it had never been used for before: that the Court was “supreme in the exposition of the law of the Constitution.”³⁹³ Subsequent Courts only doubled down on this egregious misreading of Marbury.³⁹⁴ While ordering Tennessee to reapportion its state legislative districts, for example, the Court reiterated its new position as the “ultimate interpreter of the Constitution.”³⁹⁵ In opinion after opinion, the Court and the lawyers that bought into this new legal culture slowly built up “the cult of the court.”³⁹⁶

Regardless of what his political motives may have been,³⁹⁷ though, Meese—and really Lincoln—was correct. As Parts I and II delved into, because constitutional construction is the responsibility of all three branches of government—a responsibility bestowed upon them by the people—the judiciary cannot be the sole expositor of the Constitution’s meaning. Instead, we have seen that Congress, too, can be a legitimate constitutional interpreter—especially under the Fourteenth Amendment, which expressly grants Congress the power to “enforce” the guarantees of the Amendment.³⁹⁸ This Part aims to complete the picture of what an open dialogue between Congress and the Court on the Fourteenth Amendment’s mandates means in practice.

A. The Practical Import of the Court’s Ability to “Invalidate” Laws

Pushing back on the principle of judicial supremacy does not mean that there is no role for the courts in our system. Courts can still exercise the more modest version of judicial review first charted out in Marbury.³⁹⁹ But that begs the question, in a system without judicial supremacy, what does it mean for a court to exercise judicial review?

As Professor Michael Klarman explained, “it is one thing for the Court to assert the power of judicial review, as in Marbury. It is another thing entirely for the Court to exercise that power and to have its decisions obeyed.”⁴⁰⁰ When the Court decides a case, it is ultimately dependent on the executive and legislative branches to enforce the decision and interpretation of law now and into the future. Even Chief Justice Marshall knew that when deciding Marbury.⁴⁰¹ The “genius” of Marbury was that Marshall knew the Court was too weak to exercise any sort of judicial supremacy at the time.⁴⁰² If the Court back then had the political clout it does today, and “had Marshall thought that Jefferson and Madison would have complied with a Court command that they deliver Marbury’s commission, he would not have engaged in the legal gymnastics necessary to manufacture a conflict between the statute and the Constitution.”⁴⁰³ Instead, Marshall sidestepped the entire issue by asserting that the Court lacked jurisdiction—in other words, “he issued no order that Secretary of State Madison could have defied.”⁴⁰⁴ Central to the Marbury debacle, then, was the idea that when the Court decides a case, it essentially does no more than express its ideas of the Constitution. In fact, it can physically do no more than that.⁴⁰⁵ At least, that is certainly what President Andrew Jackson understood when he later famously said “[w]ell: John Marshall has made his decision: now let him enforce it!”⁴⁰⁶

When the Court decides a case, it is binding on the parties directly involved in the case—that is a baseline assumption that everyone, including Lincoln, Meese, and even Chief Justice Marshall, share.⁴⁰⁷ Beyond that baseline though, any exposition of constitutional meaning should be treated more like an advisory opinion⁴⁰⁸ in which the justices have expressed their views on the political question before them—views that the other branches are free to disagree with. And to the extent that Congress does disagree, it can pass a statute or resolution that is inconsistent with the Court’s decision⁴⁰⁹—like it did in the ADA when it disagreed with the Court’s reasoning in Cleburne or as in the RFRA when it disagreed with the Court’s decision in Employment Division.⁴¹⁰ The subsequent back-and-forth would eventually lead to a settled interpretation of the Constitution that resolved all ambiguities and counterarguments and would ultimately be more representative of the people’s will.⁴¹¹ The conversation, then, transforms from less like a parent telling her child to follow an order “because I said so!” (judicial supremacy), and more like two adults resolving a disagreement through conversation and compromise—with neither of them setting the rules for how and when the other can speak (popular constitutionalism as departmentalism).

B. The Problem of the Two-Way Ratchet

Now, some scholars have gone as far as to argue that the courts should not be involved in any sort of constitutional conversation—full stop.⁴¹² Skeptical that the Court would actually confine itself to even the modest version of judicial review again, Professor Mark Tushnet, for example, has argued that we should abolish judicial review in all its forms.⁴¹³ To him, it is possible to have a constitution that is never enforced by the courts because “[e]liminating judicial review would not eliminate our ability to appeal to those principles in constitutional discourse outside the courts.”⁴¹⁴ But such a constitutional structure would run straight into the problem of the two-way ratchet, first identified by Justice Harlan in Morgan: without a proper check on Congress’ power, there is a legitimate concern that congressional interpretation of the Fourteenth Amendment might lead to the contraction—not the expansion—of civil rights and civil liberties under the Constitution.⁴¹⁵

The solution to that problem, however, should not be to remove a player from the game of constitutional interpretation—whether it is the Court or Congress. Rather, the best solution is the one the framers conceived of in 1787: a system of checks and balances.⁴¹⁶ The greatest security against governmental encroachment on civil rights and civil liberties is “giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the other”⁴¹⁷—in this case, the power to disagree. If Congress enacts a law that is inconsistent with the Bill of Rights and other constitutional principles, the people can give the Court the vehicle to challenge that enactment in the form of a decision in a case. And likewise, if the Court exceeds the bounds of the Constitution, then the people do not have to wait until the Court overrules itself years later.⁴¹⁸ The people can vote and petition their representatives to enact a law or promulgate a regulation that disagrees with the Court’s opinion. A constitutional conversation that stays true to the Constitution, in other words, requires at least two participants.

C. The Problem of Interpretive Anarchy and Legal Settlement

Finally, the best argument against concurrent constitutional interpretation is the idea of authoritative settlement. The benefit of the decision to commit to one single written constitution that is then interpreted by one authoritative interpreter is that it leads to “[s]tability and coordination.”⁴¹⁹ The theory goes that, because “an important—perhaps the important—function of law is its ability to settle authoritatively what is to be done,” having one interpreter will clarify and settle people’s obligations under the law.⁴²⁰ That idea holds, even if it means telling “actors to accept, for purposes of their own actions, constitutional interpretations they believe mistaken” for:

asking those same officials to subjugate their own constitutional interpretations to the mistaken constitutional interpretations of Supreme Court Justices is not asking them to do anything very different from what they are required to do in taking the Constitution itself—warts and all—as a constraint on their political actions and moral judgments.⁴²¹

Yet, today, the Supreme Court’s decisions have fallen short of such optimal clarity. The Roberts Court especially, “does not appear to consider itself particularly bound by stare decisis.”⁴²² In Dobbs v. Jackson Women’s Health Organization,⁴²³ the Court “discard[ed] a precedent that had existed for nearly half a century” as it upheld Mississippi’s fifteen-week abortion ban.⁴²⁴ In Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard College,⁴²⁵ the Court effectively ended affirmative action in college programs and implicitly overruled precedent like Grutter v. Bollinger.⁴²⁶ In Loper Bright Enterprises v. Raimondo, the Court overruled the 40-year practice of according administrative agencies deference in their interpretations of what the law demands.⁴²⁷ One only needs to read the writing on the wall to see that it is not necessarily pure pessimism to suggest that more precedential decisions are on the Roberts Court’s chopping block. And, even if one “refute[s] the notion that the Roberts Court has been any more inclined than prior Courts to overrule precedent,”⁴²⁸ the point still stands: the Court’s ability to overrule itself is precisely why its decisions cannot be treated as equivalent to the Constitution itself.⁴²⁹ Even the Supreme Court gets the Constitution wrong sometimes.⁴³⁰

It is exactly because one branch of government can get the Constitution wrong or misunderstand how the world will change that there should never be permanent winners or losers in our system. Allowing the people to “fight it out” in the halls of Congress and the Court not only produces more legitimate constitutional determinations, but it also serves a truth-seeking function.⁴³¹ Much like John Stuart Mill’s “marketplace of ideas,” when “everyone comes to the [constitutional] market with his or her ideas, and through discussion everyone exchanges ideas with one another[, t]he ideas or opinions compete with one another, and we have the opportunity to test all of them, weighing one against the other.”⁴³² From this messy, rhizomatic clash of individuals and their institutions, the best and most stable interpretation of our Constitution will emerge. For the only way to “deal with erroneous or dangerous ideas is to refute them, not to suppress them.”⁴³³ Only speaking the truth can combat error and create the stability we seek in the realm of constitutional interpretation.

V. Conclusion

Our Constitution begins with “We the People of the United States”⁴³⁴ and ends, some 7,000 words later, with the Twenty-Seventh Amendment.⁴³⁵ It contains provision after provision creating the branches of government, vesting those branches with power, and fencing off the areas of society where the government cannot go while enumerating those where it must. One of those provisions, Section 5 of the Fourteenth Amendment, explicitly commands Congress to adopt “appropriate” legislation to “enforce” its mandate that:

[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.⁴³⁶

Yet, more than 150 years after those words were first written, the Court has arrogated the duty to enforce the Fourteenth Amendment for itself. Not just that, the Court has taken over the job of interpreting the whole Constitution. But what republic gives nine individuals sitting in robes on a bench the sole power to interpret its people’s charter?

Whether they realized it or not, that’s what the Members of Congress and the disability rights activists in the 1990s were pushing back against after the Court found that the text of the Constitution contains no protections for people with disabilities. It is high time the people followed suit and take back the Constitution once and for all. The first step is to return the power of constitutional enforcement to where it belongs: the American people and their representatives.

[*] J.D. Candidate, Harvard Law School, 2025; B.A. University of North Carolina at Chapel Hill, 2021. Thank you to Professors Martha L. Minow, Laurence H. Tribe, Todd D. Rakoff, and Susannah B. Tobin for their thoughtful feedback, encouragement, and criticism that have allowed me to turn a rough idea into something more. Second, I am deeply grateful to Dina Zingaro (who gave me the title for this article and taught me what a rhizome is over lunch one day), Esther Gabriel, Hannah Hyams, Dani Poloner, Claire Eichhorn, Kristen Popham, Pinckney, Charlie Shorey, Elaine Tsui, Linda Zou, Jane Jozefowicz, and Astonique Robinson for the countless conversations that have in some way shaped this article—and in the process, me. Finally, thank you to Mia Berman, Marissa Medici, and the editors of the Harvard Journal on Legislation for believing in this piece and working to make it better than I could have done alone. All views and mistakes are my own.

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