{"id":4111,"date":"2025-02-22T14:27:40","date_gmt":"2025-02-22T19:27:40","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4111"},"modified":"2026-02-12T09:44:41","modified_gmt":"2026-02-12T14:44:41","slug":"our-rhizomatic-constitution","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2025\/02\/22\/our-rhizomatic-constitution\/","title":{"rendered":"Our Rhizomatic Constitution"},"content":{"rendered":"

Radhika M. Kattula\u00a0 [*]<\/a>\u00a0<\/span> <\/strong><\/p>\n

\u00a0<\/p>\n

Abstract<\/span><\/p>\n

The text of Section 5 of the Fourteenth Amendment says that \u201cCongress shall have power to enforce, by appropriate legislation, the provisions of this article.\u201d Yet, since its inception, the word \u201cenforce\u201d 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 \u201cno.\u201d <\/em><\/p>\n

This Article pushes back against that misreading of the Fourteenth Amendment and its history, as well as the Supreme Court\u2019s 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\u2019s\u2014and more broadly, the Constitution\u2019s\u2014meaning.<\/em> 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.<\/em><\/p>\n

I. Introduction<\/span><\/p>\n

\u201c[I]f they were to be anything but \u2018parasites\u2019 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.\u201d<\/em><\/p>\n

\u2013 Charles Hamilton Houston1<\/a><\/sup>James Rawn, Jr.<\/span>, Root and Branch: Charles Hamilton Houston, Thurgood Marshall, and the Struggle to End Segregation<\/span> 53 (1st ed. 2010). <\/span><\/em><\/p>\n

It was March 12, 1990, and Congress had a problem waiting on its front steps.2<\/a><\/sup>See<\/em> Julia Carmel, \u2018Nothing About Us Without Us\u2019: 16 Moments in the Fight for Disability Rights<\/em>, N.Y. Times<\/span> (Jul. 29, 2020), https:\/\/www.nytimes.com\/2020\/07\/22\/us\/ada-disabilities-act-history.html [https:\/\/perma.cc\/U48D-N782].<\/span> 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<\/a><\/sup>Jonathan M. Young<\/span>, Equality of Opportunity: The Making of the Americans with Disabilities Act, National Council on Disability<\/span> 85 (1997), https:\/\/files.eric.ed.gov\/fulltext\/ED512697.pdf [https:\/\/perma.cc\/6SSY-JGJT]. The first version of the ADA was introduced in the 100th Congress by Senator Lowell Weicker and Representative Coelho, though the bill never came to a vote before the end of the congressional session. See id.<\/em> at 54, 75. <\/span> This time, however, the ADA\u2019s sponsors had something they did not before: unusually strong bipartisan support and the endorsement of then-President George H.W. Bush.4<\/a><\/sup>See<\/em> Larry E. Craig, The Americans with Disabilities Act: Prologue, Promise, Product, and Performance<\/em>, 35 Idaho L. Rev.<\/span> 205, 209 (1999).<\/span> With such a broad coalition of support, the passing of the ADA seemed to be a given\u2014the rules of bicameralism and presentment nothing more than a mere formality.<\/p>\n

As expected, the bill passed the full Senate by an overwhelming majority.5<\/a><\/sup>Id.<\/em> at 210 (\u201c[The bill] was considered early by the full Senate, passing by a 76-8 vote on September 7, 1989\u201d).<\/span> Getting the bill through the House, however, proved to be a more tortuous matter.6<\/a><\/sup>See<\/em> Young, supra<\/em> note 3, at 104. <\/span> 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><\/sup>Id.<\/em> <\/span>\u2014a delay that occurred despite, as Representative Major R. Owens said of the bill at the time, \u201cAll the i\u2019s hav[ing] been dotted and all the t\u2019s hav[ing] been crossed.\u201d8<\/a><\/sup>Carmel, supra<\/em> note 2 (despite having bipartisan support in Congress, the ADA stalled in the House because of the lobbying efforts of public transportation companies that \u201cfought against the strict regulations for accessibility\u201d); see also <\/em>Perri Meldon, Disability History: The Disability Rights Movement<\/em>, National Park Service<\/span> (Mar. 22, 2024), https:\/\/www.nps.gov\/articles\/disabilityhistoryrightsmovement.html [https:\/\/perma.cc\/T92S-C9YS]. <\/span> By the spring of 1990, alarmed, the disability rights movement had had enough.9<\/a><\/sup>See Carmel, supra <\/em>note 2. <\/span><\/p>\n

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<\/a><\/sup>Minnesota Governor\u2019s Council on Developmental Disabilities, Moments in Disability History 27: A Magna Carta and the Ides of March to the ADA<\/em>, The ADA Legacy Project<\/span> (Mar. 1, 2015), https:\/\/mn.gov\/mnddc\/ada-legacy\/ada-legacy-moment27.html [https:\/\/perma.cc\/SG4C-C9U6].<\/span> 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<\/a><\/sup>Id. <\/em><\/span> Their struggle to make their way up the steps of their own government\u2014plastered on television screens across America\u2014\u201cshow[ed] the country what kinds of things people with disabilities have to face on a day-to-day basis.\u201d12<\/a><\/sup>Id.<\/em>; see also <\/em>Faye Ginsburg & Rayna Rapp, Making Accessible Futures: From the Capitol Crawl to #cripthevote<\/em>, 39 Cardozo L. Rev.<\/span> 699, 703 (2017).<\/span> The \u201cCapitol Crawl\u201d forced Congress to respond.13<\/a><\/sup>See<\/em> Gabe Sanders, How the \u201cCapitol Crawl\u201d Galvanized Congress into Passing a Landmark Civil Rights Bill<\/em>, The Nonviolence Project<\/span> (Sept. 8, 2022), https:\/\/thenonviolenceproject.wisc.edu\/2022\/09\/08\/capitol-crawl\/ [https:\/\/perma.cc\/MEA6-5MUQ].<\/span><\/p>\n

Just three months later, in a ceremony on the South Lawn of the White House, President Bush signed into law14<\/a><\/sup>See<\/em> Young, supra<\/em> note 3, at 146\u201347.<\/span> what has since been called \u201cthe most significant piece of civil rights legislation since the Civil Rights Act of 1964\u201d15<\/a><\/sup>Craig, supra<\/em> note 4, at 206. <\/span> and the \u201cEmancipation Proclamation\u201d for the disability community: the Americans with Disabilities Act of 1990.16<\/a><\/sup>See<\/em> 136 Cong. Rec.<\/span> S9689 (daily ed. July 13, 1990) (statement of Sen. Harkin) (\u201cThe ADA is, indeed, the 20th century emancipation proclamation for all persons with disabilities\u201d).<\/span> In rather \u201cprosaic\u201d language, the ADA codified a national \u201ccommitment to remove barriers and protect opportunities for all Americans to strive, achieve, and contribute up to their potential.\u201d17<\/a><\/sup>Craig, supra<\/em> note 4, at 206. <\/span> More than just \u201crewriting building codes and personnel manuals across America\u201d to reflect the negative right of individuals with disabilities to be free from discrimination,18<\/a><\/sup>Id. <\/em><\/span> the ADA went a step further. The statute also imposes affirmative obligations on both public and private entities to ensure equality.19<\/a><\/sup>See generally <\/em>Claire Raj, The Lost Promise of Disability Rights<\/em>, 119 Mich. L. Rev.<\/span> 933 (2021). <\/span><\/p>\n

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<\/a><\/sup>See generally<\/em> Robert L. Burgdorf Jr., The Americans With Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute<\/em>, 26 Harv. C.R.-C.L. L. Rev.<\/span> 413 (1991).<\/span> 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\u2019s drafters displayed remarkable awareness of, and responsiveness to, the Court\u2019s recent constitutional jurisprudence21<\/a><\/sup>Katie Eyer and Karen M. Tani, Disability and the Ongoing Federalism Revolution<\/em>, 133 Yale L.J.<\/span> 839, 899 (2024). <\/span>\u2014at times acquiescing to the Court\u2019s demands, while at others, completely repudiating them. For instance, in response to Justice William Rehnquist\u2019s requirement in Pennhurst State School & Hospital v. Halderman (Pennhurst I)22<\/a><\/sup><\/em>451 U.S. 1 (1978). <\/span><\/em> that Congress clearly specify the constitutional provision that authorizes a piece of legislation, the ADA\u2019s drafters explicitly \u201cinvoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment\u201d in Section 2 of the ADA.23<\/a><\/sup>42 U.S.C. \u00a7 12101(b)(4); see<\/em> Eyer and Tani, supra<\/em> note 21, at 899. <\/span> In response to the Court\u2019s many rulings that any abrogation of Eleventh Amendment immunity in statutes authorized by the Fourteenth Amendment requires a clear statement,24<\/a><\/sup>See, e.g.<\/em>, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985); Dellmuth v. Muth, 491 U.S. 223, 228 (1989); Emps. of the Dep\u2019t of Pub. Health & Welfare v. Dep\u2019t of Pub. Health & Welfare, 411 U.S. 279, 284\u201385 (1973).<\/span> the ADA\u2019s drafters also included a section titled \u201cState Immunity.\u201d25<\/a><\/sup>See<\/em> Eyer and Tani, supra<\/em> note 21, at 899\u2013900. That section declared that \u201c[a] State shall not be immune under the eleventh amendment . . . from an action in Federal or State court . . . for a violation of this act.\u201d 42 U.S.C. \u00a7 12202.<\/span><\/p>\n

More controversial, however, was the ADA\u2019s original \u201cFindings and Purposes\u201d section, which seemingly refuted one of the Court\u2019s decisions from six years earlier.26<\/a><\/sup>See<\/em> Eyer and Tani, supra<\/em> note 21, at 900.<\/span> In 1984, the Supreme Court in City of Cleburne v. Cleburne Living Center27<\/a><\/sup><\/em>473 U.S. 432 (1985). <\/span><\/em> held that individuals with disabilities are not a \u201cquasi-suspect class,\u201d warranting heightened scrutiny in the Equal Protection Clause analysis.28<\/a><\/sup>Id.<\/em> at 442.<\/span> Unlike other suspect classes, such as race or sex, the disability community, the Court said, was too \u201clarge and diversified\u201d and clearly not subject to \u201ccontinuing antipathy or prejudice\u201d given the existence of disability rights legislation like the Rehabilitation Act of 1973.29<\/a><\/sup>Id.<\/em> at 443\u201346. <\/span> Regardless of the question of what form of scrutiny the Court actually applied to disability in Cleburne<\/em>, the Court had at least facially rejected heightened scrutiny for people with disabilities.30<\/a><\/sup>Interestingly, in evaluating the challenged law under rational basis review, the Court found in favor of the Cleburne<\/em> plaintiffs because of the \u201cirrational prejudice\u201d displayed by the defendants. Id.<\/em> at 450. In other words, the Court ultimately applied some sort of heightened scrutiny to disability rights by shifting the burden of proof to the defendant to justify its regulation. See<\/em> Gayle Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny by Any Other Nam<\/em>e, 62 Ind. L.J. <\/span>779, 794\u201396 (1987). That test\u2014never formally recognized by the Supreme Court\u2014informally came to be known as rational basis with bite. Id. <\/em><\/span><\/p>\n

Despite the Court\u2019s precedent in Cleburne<\/em>, Congress in the ADA went on to memorialize an alternative stance on the classification of individuals with disabilities under the Fourteenth Amendment.31<\/a><\/sup>The issue of rational basis not being protective enough of individuals with disabilities was indeed raised during the legislative process for the ADA. For instance, then-President of the American Association on Mental Retardation, Jared W. Ellis, testified to the House Judiciary Committee, specifically the Subcommittee on Civil and Constitutional Rights, about the \u201clack of judicial enforcement of the protections of the United States Constitution\u201d since the Cleburne<\/em> decision. Americans with Disabilities Act of 1989: Hearings on H.R. 2273 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary<\/em>, 101st Cong. 422 (1989). Specifically, Ellis testified to the following:

\nThe Fourteenth Amendment guarantees to all persons the equal protection of the laws. There can be no doubt that this applies to citizens with disabilities just as it does to all others. But the Supreme Court of the United States has declined to provide the same level of protection that it does in the areas of race and gender. Instead, it consigned cases involving disability discrimination to the level or \u2018tier\u2019 of judicial scrutiny least favorable to the individual who suffers the discrimination\u2014the so-called \u2018rational basis\u2019 test. What this means in practical terms is that any halfway plausible rationalization for governmental discrimination against people with mental or physical disabilities will be enough to satisfy the Federal courts.

\nId. at 422\u201323. Given the Court\u2019s misstep in Cleburne<\/em>, Ellis \u201curge[d] the House of Representatives to join the Senate and President Bush in approving the Americans with Disabilities Act\u201d and increase the scope of protection for individuals with disabilities. Id.<\/em> at 423. <\/span> In the statute\u2019s original \u201cFindings and Purposes\u201d section, the ADA\u2019s drafters went line-by-line and addressed the Court\u2019s reasoning in Cleburne<\/em>.32<\/a><\/sup>Congress also seemingly addressed the indicia of suspectness famously mentioned by Justice Harlan Stone in Footnote 4 of United States v. Carolene Products<\/em>. 304 U.S. 144, 152 n.4 (1938) (\u201cThere may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. . . . Nor need we enquire whether similar considerations enter into the review of . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry\u201d). <\/span> They wrote that \u201cindividuals with disabilities are a discrete and insular minority\u201d that has been \u201csubjected to a history of purposeful unequal treatment\u201d and \u201crelegated to a position of political powerlessness in our society\u201d because of immutable \u201ccharacteristics . . . beyond [their] control.\u201d33<\/a><\/sup>42 U.S.C. \u00a7 12101(a)(7) (1990). This language remained in the ADA until it was removed in the ADA Amendments Act of 2008.<\/span> In passing this language, the disability rights advocates and scholars argued, \u201cCongress clearly intended to create a new protected class\u201d and had subsequently ratcheted up the standard of review for disability-rights equal protection claims.34<\/a><\/sup>Amy Scott Lowndes, The Americans with Disabilities Act of 1990: A Congressional Mandate for Heightened Judicial Protection of Disabled Persons<\/em>, 44 Fla. L. Rev.<\/span> 417, 446 (1992).<\/span> More significantly, through the ADA, the drafters had potentially resurrected the view that Congress has independent authority to interpret the Fourteenth Amendment.35<\/a><\/sup>See<\/em> Robert E. Rains, A Pre-History of the Americans with Disabilities Act and Some Initial Thoughts as to Its Constitutional Implications<\/em>, 11 St. Louis U. Pub. L. Rev.<\/span> 185, 202 (1992) (\u201cWhether or not the Supreme Court ultimately decides that Congress has now mandated heightened judicial scrutiny in cases of discrimination on the basis of disability brought under the fourteenth amendment, there can be no question that the A.D.A. will provide, when fully effective, powerful avenues of redress for Americans with disabilities who are subjected to discrimination\u201d).<\/span><\/p>\n

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 \u201cthe power to enforce, by appropriate legislation\u201d the guarantees of the Fourteenth Amendment,36<\/a><\/sup>U.S. Const.<\/span> amend. XIV, \u00a7 5. <\/span> the scope of its enforcement power has been a source of significant constitutional controversy since its ratification.<\/p>\n

The idea that the word \u201cenforce\u201d 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<\/a><\/sup>Archibald Cox, The Supreme Court, 1966 Term \u2014 Foreword: Constitutional Adjudication and the Promotion of Human Rights<\/em>, 80 Harv. L. Rev.<\/span> 91, 94 (1966) [hereinafter Cox, Foreword<\/em>]. <\/span>\u2014an understanding commonly traced back to Chief Justice John Marshall\u2019s famous pronouncement in Marbury v. Madison38<\/a><\/sup><\/em>5 U.S. (1 Cranch) 137 (1803). <\/span><\/em> that it is \u201cthe province and duty of the judicial department to say what the law is.\u201d39<\/a><\/sup>Id.<\/em> at 177. <\/span> By extension, congressional interpretation of the Fourteenth Amendment would appear to be incongruent with the contours of judicial review established in Marbury<\/em>.40<\/a><\/sup>See id. <\/em><\/span> 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<\/a><\/sup>See, e.g.<\/em>, Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation<\/em>, 110 Harv. L. Rev.<\/span> 1359 (1997).<\/span> 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<\/a><\/sup>See id.<\/em> at 1377\u201378 (\u201cThe reasons for having laws and a constitution that is treated as law are accordingly also reasons for establishing one interpreter\u2019s interpretation as authoritative\u201d).<\/span> and many modern legislative constitutionalists who argue that Congress has the authority to define the nation\u2019s highest law.43<\/a><\/sup>See <\/em>Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power<\/em>, The Atlantic<\/span> (June 8, 2022), https:\/\/www.theatlantic.com\/ideas\/archive\/2022\/06\/supreme-court-power-overrule-congress\/661212\/ [https:\/\/perma.cc\/YDS5-JKA7].<\/span><\/p>\n

Despite the amount of ink spilled defending one-branch supremacy\u2014often judicial supremacy, though not always\u2014this 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<\/em> Congress\u2014something that the ADA\u2019s 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<\/a><\/sup>Much has been written about the executive branch\u2019s ability to interpret the Constitution as well. See, e.g.<\/em>, Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is<\/em>, 83 Geo L.J.<\/span> 217 (1994); David A. Strauss, Presidential Interpretation of the Constitution<\/em>, 15 Cardozo L. Rev.<\/span> 113 (1993); Christopher N. May, Presidential Defiance of Unconstitutional Laws: Reviving the Royal Prerogative<\/em>, 21 Hastings Const. L.Q.<\/span> 865 (1994). However, this Article does not cover the argument of executive review in-depth.<\/span><\/p>\n

The dialogic model of interpretation is nothing new\u2014both in terms of American constitutional law as well as from a larger, bird\u2019s-eye view of nature and philosophy. In the 1980s, the postmodern French philosophers Gilles Deleuze and F\u00e9lix Guattari differentiated between the \u201carborescent\u201d classic Western philosophy\u2014in which knowledge and thinking are seen as growing hierarchically and linearly from a single origin point like a tree\u2014and what they called \u201crhizomatic\u201d 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<\/a><\/sup>See generally<\/em> Gilles Deleuze and F\u00e9lix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia<\/span> (1987). <\/span> Deleuze and Guattari explained that \u201c[a] rhizome has no beginning or end; it is always in the middle, between things, interbeing, intermezzo<\/em>. The tree is filiation, but the rhizome is alliance, uniquely alliance.\u201d46<\/a><\/sup>Id.<\/em> at 25.<\/span> 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<\/a><\/sup>See, e.g.<\/em>, Kenneth W. Starr, First Among Equals: The Supreme Court in American Life<\/span> (2002).<\/span> 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.<\/p>\n

In exploring the rhizomatic nature of our Constitution, this Article proceeds as follows. Part I tracks judicial and congressional perception of the term \u201cenforce\u201d in Section 5 over time, starting with the understanding of the Fourteenth Amendment\u2019s drafters during the Reconstruction Era and ending with the modern Court\u2019s narrow construction of the term. Part II rejects the philosophy of judicial supremacy that has leached into arguments against Congress\u2019 ability to define the scope of the Fourteenth Amendment\u2019s protections. Finally, Part III explores how Congress interpreting the Fourteenth Amendment in tandem with the Supreme Court would functionally play out.<\/p>\n

II. Defining \u201cEnforce\u201d in Section 5 of the Fourteenth Amendment<\/span><\/p>\n

As Professors Eyer and Tani explain, litigators immediately took notice of the ADA\u2019s \u201cFindings and Purposes\u201d section.48<\/a><\/sup>See<\/em> Eyer and Tani, supra<\/em> note 21, at 902. <\/span> Specifically, they began arguing that the ADA changed the standard of review for disability-based equal protection claims.49<\/a><\/sup>Id.<\/em> (citing More v. Farrier, 984 F.2d 269, 271 n.4 (8th Cir. 1993); Tomsha v. City of Colorado Springs, 856 P.2d 13, 14 (Colo. App. 1992)).<\/span> Less than six months after the ADA\u2019s passage, the California Association of the Physically Handicapped, for instance, petitioned the Supreme Court arguing just that.50<\/a><\/sup>Petition for Writ of Certiorari at 20, Cal. Ass\u2019n of Physically Handicapped v. FCC, 499 U.S. 975 (1991) (No. 90-1086); see also<\/em> Eyer and Tani, supra<\/em> note 21, at 902.<\/span> The advocates claimed that \u201cCongress has determined that disabled Americans should have their equal protection claims subjected to strict scrutiny\u201d and that \u201c[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.\u201d51<\/a><\/sup>Id. <\/em><\/span> Though the Court ultimately denied the petition,52<\/a><\/sup>Cal. Ass\u2019n of Physically Handicapped v. FCC, cert. denied, 499 U.S. 975 (1991).<\/span> the argument had been made: Congress had openly disagreed with the Court on the demands of the Fourteenth Amendment through the ADA.<\/p>\n

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. Doe53<\/a><\/sup><\/em>509 U.S. 312 (1993).<\/span><\/em> considered a challenge to Kentucky\u2019s 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 \u201c[m]indful of the prerogatives of a co-equal branch of government\u201d by \u201ctak[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.\u201d54<\/a><\/sup>Brief for Respondents at 9, Heller v. Doe, 509 U.S. 312 (1993) (No. 92-351). <\/span> Ultimately, however, the Court ignored this argument and upheld the Kentucky scheme under rational basis review.55<\/a><\/sup>See<\/em> Heller<\/em>, 509 U.S. at 334. In doing so, the Court even denied the existence of rational basis with bite, positing that it had never \u201cappl[ied] a different standard of rational-basis review\u201d to begin with. Id.<\/em> at 321. Though, Professors Eyer and Tani have noted that:

\n[i]nternal Court documents and the oral argument transcript show that the Justices recognized and understood the ADA-based argument. Justice Blackmun\u2019s law clerk, for example, noted her own agreement with the notion that people with intellectual disabilities \u2018are a discrete and insular minority who have experienced a history of discrimination\u2019 and who therefore deserved heightened protection.

\nEyer and Tani, supra<\/em> note 21, at 903 (quoting Memorandum from Radhika Rao, Clerk, U.S. Sup. Ct., to Justice Harry A. Blackmun 27 n.6, Heller v. Doe, No. 92-351 (Mar. 19, 1993) (on file with Harry A. Blackmun Papers, Library of Congress, Box 624, Folder 2)). <\/span><\/p>\n

The Court\u2019s 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\u2019s current narrow construction of Section 5 and congressional power more generally.56<\/a><\/sup>See<\/em> City of Boerne v. Flores, 521 U.S. 507, 519\u201320 (1997).<\/span> Whether it comports with historical understandings of the Section 5 enforcement power, however, is a different matter.57<\/a><\/sup>See<\/em> discussion infra<\/em> Sections II.A\u2013C. <\/span> 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 \u201cenforce\u201d 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.<\/p>\n

A. The Reconstruction Period<\/em><\/p>\n

More than 80 years after the Fourteenth Amendment was ratified, the Court handed down its famous decision in Brown v. Board of Education58<\/a><\/sup><\/em>347 U.S. 483 (1954). <\/span><\/em> \u201cthat in the field of public education, \u2018separate but equal\u2019 has no place.\u201d59<\/a><\/sup>Id.<\/em> at 495.<\/span> But before reaching that landmark conclusion, Chief Justice Earl Warren took a slight detour.60<\/a><\/sup>See<\/em> Alexander M. Bickel, The Original Understanding and the Segregation Decision<\/em>, 69 Harv. L. Rev.<\/span> 1, 1 (1955).<\/span> On re-argument of the case, the Court had asked both parties to focus largely on the ratification history of the Fourteenth Amendment.61<\/a><\/sup>Brown<\/em>, 347 U.S. at 489. <\/span> Yet, despite the \u201cexhaustive[] 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,\u201d Chief Justice Warren ultimately found the ratification history to be \u201c[a]t best . . . inconclusive.\u201d62<\/a><\/sup>Id.<\/em> <\/span> As Chief Justice Warren helpfully explained:<\/p>\n

The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among \u2018all persons born or naturalized in the United States.\u2019 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<\/a><\/sup>Id. <\/em><\/span><\/p>\n

Though Chief Justice Warren warned that \u201cwe cannot turn the clock back to 1868 when the Amendment was adopted,\u201d64<\/a><\/sup>Id.<\/em> at 492. <\/span> the Court has attempted to do just that in numerous cases since then. In the 1960s, the Court relied on the 39th Congress\u2019 debates to argue that \u201c[a] construction of Section 5 that would require a judicial determination that the enforcement of the state law . . . violated the Amendment\u201d would contravene the framers\u2019 intent to assign the responsibility of implementing the Amendment to Congress.65<\/a><\/sup>Katzenbach v. Morgan, 384 U.S. 641, 648 (1966). <\/span> Towards the end of the century, the Court flipped and began arguing the exact opposite\u2014that the Amendment\u2019s framers intended, as indicated by their revisions of the Fourteenth Amendment, to confer upon Congress not \u201cplenary but remedial\u201d power to \u201cmake the substantive constitutional prohibitions [determined by the Court] against the States effective.\u201d66<\/a><\/sup>City of Boerne v. Flores, 521 U.S. 507, 508 (1997). <\/span> Put differently, both sides over the years have cherry-picked various snippets of the imprecise \u201cmass of evidence\u201d that is the ratification history of the Fourteenth Amendment67<\/a><\/sup>Bickel, supra<\/em> note 60, at 6. <\/span> to argue with absolute certainty that the role of Congress in interpreting the Fourteenth Amendment has been long-settled\u2014a line of reasoning the Court explicitly rejected in Brown<\/em>.68<\/a><\/sup>347 U.S. at 489\u201390. <\/span><\/p>\n

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<\/em> helps us craft an interpretation in a way that \u201cendure[s] for ages.\u201d69<\/a><\/sup>McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819).<\/span> After all, as Chief Justice Marshall admonished us, \u201cit is a constitution <\/em>we are expounding.\u201d70<\/a><\/sup>Id.<\/em> at 407 (emphasis added). <\/span><\/p>\n

1. The Bingham Proposal<\/em><\/p>\n

While the Senate was busy considering the Freedmen\u2019s Bureau and Civil Rights Bills, Representative John A. Bingham of Ohio proposed a new amendment to the Constitution on January 12, 1866.71<\/a><\/sup>See<\/em> Bickel, supra<\/em> note 60, at 29\u201330. <\/span> His proposal stated that \u201c[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.\u201d72<\/a><\/sup>Id.<\/em> at 30.<\/em> <\/span> 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:<\/p>\n

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<\/a><\/sup>Id.<\/em> at 33.<\/em> <\/span><\/p>\n

The implications of Bingham\u2019s language \u201cwith regard to congressional power and federalism were shocking.\u201d74<\/a><\/sup>Robert J. Harris<\/span>, The Quest for Equality: The Constitution, Congress, and the Supreme Court<\/span> 33 (1960). <\/span> That was because Bingham, \u201c[a] shrewd . . . and successful railroad lawyer,\u201d75<\/a><\/sup>Howard Jay Graham, The Conspiracy Theory of the Fourteenth Amendment<\/em>, 47 Yale L.J.<\/span> 371, 373 (1938) (quoting Charles A. Beard<\/span>, The Rise of American Civilization<\/span> 111\u201313 (1927)). <\/span> had copied the breadth of the language in the Necessary and Proper Clause in his proposal.76<\/a><\/sup>See<\/em> U.S. Const.<\/span> art. I, \u00a7 8, cl. 18. <\/span> Some Radicals, like William D. \u201cPig-Iron\u201d Kelley of Pennsylvania, argued \u201cthe amendment would add no new powers whatever to those Congress already possessed\u201d and instead was simply \u201cdeclarative.\u201d77<\/a><\/sup>Bickel, supra<\/em> note 60, at 33\u201334. <\/span> That argument comports with the text of the Necessary and Proper Clause itself,78<\/a><\/sup>See<\/em> U.S. Const.<\/span> art. I, \u00a7 8, cl. 18 (\u201cTo make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States<\/em>, or in any Department or Officer thereof\u201d) (emphasis added). As explained by John Manning, the text of the Necessary and Proper Clause:

\ndelegates to Congress broad and explicit (though not limitless) discretion to compose the government and prescribe the means of constitutional power . . . [T]he Necessary and Proper Clause is a master provision that allocates decisionmaking responsibility to make laws that implement other constitutional powers. Indeed, the clause empowers Congress to carry into execution not only its own powers, but also \u2018all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.\u2019 This breadth indicates that the people not only delegated the implementation power to Congress, but also gave it precedence over the other branches in the exercise of such power.

\nJohn F. Manning, The Supreme Court, 2013 Term \u2014<\/em> Foreword: The Means of Constitutional Power<\/em>, 128 Harv. L. Rev. <\/span>1, 6\u20137 (2014) (citations omitted). Although members of the 39th Congress debated what it would mean to include the phrase \u201cnecessary and proper\u201d in the text of the Fourteenth Amendment, arguably, the various versions of the Fourteenth Amendment being circulated were already encompassed by the broad language of the Necessary and Proper Clause. In that way, the inclusion of the \u201cnecessary and proper\u201d language only embellished the \u201cparts of the Constitution which \u2018probably were intended from the beginning to have life and vitality\u2019\u201d\u2014namely the Necessary and Proper Clause. Bickel, supra<\/em> note 60, at 33\u201334 n.65 (quoting Cong. Globe<\/span>, 39th Cong., 1st Sess. 1054 (1865) (statement of Rep. William Higby)). <\/span> and Bingham himself seemed to believe that when he explained to the House that \u201c[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.\u201d79<\/a><\/sup>Cong. Globe<\/span>, 39th Cong., 1st Sess. 1034 (1865). <\/span> However, many of their fellow congressmen saw in the proposed amendment an unprecedented expansion of congressional power.80<\/a><\/sup>Harris<\/span>, supra<\/em> note 74, at 33\u201335. <\/span><\/p>\n

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\u2019s initial proposal is actually not that surprising. For years, abolitionists had worked to \u201crevitalize[] 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\u201d\u2014work that congressmen like Bingham took notice of when they argued that a new amendment was necessary to ensure that \u201call men, before the law, are equal in respect of those rights which God gives and no man or state may rightfully take away except.\u201d81<\/a><\/sup>Id.<\/em> at 17\u201318. <\/span> These abolitionists saw plenary congressional power as a necessity to enforce the guarantees of equality in the Constitution once and for all.82<\/a><\/sup>See id. <\/em><\/span><\/p>\n

Moreover, many members of the 39th Congress displayed a \u201cdeep-seated mistrust of the judiciary.\u201d83<\/a><\/sup>Robert A. Burt, Miranda and Title II: A Morganatic Marriage<\/em>, 1969 Sup. Ct. Rev.<\/span> 81, 94 (1969). <\/span> As Professor Robert Harris explained, the \u201cFormer Abolitionists\u201d who predominated in the 39th Congress \u201chad not forgiven the Court for its decision in the Dred Scott<\/em> case or for Chief Justice Roger B. Taney\u2019s circuit court opinion in Ex parte Merryman<\/em>.\u201d84<\/a><\/sup>Harris<\/span>, supra<\/em> note 74, at 54. Professor Harris also suggested that \u201c[t]he hostility of Radicals to the Court was intensified by Chief Justice Salmon P. Chase\u2019s refusal to hold circuit court in states under martial law, thereby preventing the trial of Jefferson Davis, and the fears that their reconstruction policies would be invalidated.\u201d Id. <\/em><\/span> Or, as Professor Joseph James noted, the \u201cdecisions 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.\u201d85<\/a><\/sup>Joseph B. James<\/span>, The Framing of the Fourteenth Amendment<\/span> 184 (1956). <\/span> The \u201cnecessary and proper\u201d language appeared to remedy these concerns by instead expressly conferring upon Congress\u2014not the courts\u2014the broadest constitutional discretion possible.<\/p>\n

However, Bingham\u2019s proposal was certainly not without criticism. Some congressmen, including many of those eventually cited by the Supreme Court in the 1990s,86<\/a><\/sup>See<\/em> City of Boerne v. Flores, 521 U.S. 507, 520\u201324 (1997). <\/span> 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<\/a><\/sup>See, e.g.<\/em>, Bickel, supra<\/em> note 60, at 38. <\/span> Representative Jackson Rogers of New Jersey worried that:<\/p>\n

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<\/a><\/sup>Id.<\/em> at 34. <\/span><\/p>\n

Representative Robert S. Hale of New York argued that because the Amendment \u201cgives to all persons equal protection,\u201d its effect would be to supplant \u201call State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen . . . [with] the law of Congress established instead.\u201d89<\/a><\/sup>Id.<\/em> at 35. <\/span> And Representative Thomas T. Davis, also of New York, \u201cfeared that the power would be used \u2018in the establishment of perfect political equality between the colored and the white race of the South.\u2019\u201d90<\/a><\/sup>Id.<\/em> at 38. <\/span> On the other side, one Radical, Representative Giles W. Hotchkiss, also of New York, even appeared to worry that Bingham had not been \u201csufficiently radical.\u201d91<\/a><\/sup>Id.<\/em> at 39\u201340. <\/span> According to Representative Hotchkiss, Bingham\u2019s decision to place the proposal\u2019s guarantees of equality in the hands of a majoritarian institution like Congress hurt the civil rights cause instead.92<\/a><\/sup>Id. <\/em><\/span> Together, these objections were enough to lead the House to table Bingham\u2019s proposal until the following April.93<\/a><\/sup>Id.<\/em> at 40. <\/span><\/p>\n

2. The Fourteenth Amendment<\/em><\/p>\n

On April 30, 1866, the Joint Committee reconvened and reported a new proposal to Congress.94<\/a><\/sup>Id.<\/em> at 45.<\/span> In the new draft of the Amendment, one section stated that:<\/p>\n

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<\/a><\/sup>Id.<\/em> at 42\u201343. <\/span><\/p>\n

Another section prescribed that \u201cCongress shall have power to enforce by appropriate legislation, the provisions of this article.\u201d96<\/a><\/sup>Id.<\/em> at 41. <\/span> This language, of course, is the one that now appears in the Fourteenth Amendment.97<\/a><\/sup>Id.<\/em> at 43; U.S. Const.<\/span> amend XIV, \u00a7 5. <\/span><\/p>\n

Missing from the final version of the Fourteenth Amendment, though, is the \u201cnecessary and proper\u201d language from Bingham\u2019s original proposal. What, then, is \u201c[t]he significance of the defeat of the Bingham proposal\u201d?98<\/a><\/sup>City of Boerne v. Flores, 521 U.S. 507, 523 (1997). <\/span> 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<\/a><\/sup>Harris<\/span>, supra<\/em> note 74, at 37 (\u201cDr. tenBroek and others have demonstrated rather plausibly that the debates reveal a determination to vest Congress with a broader power to enforce the amendment by legislation extending protection to persons in the event of failure of the states to afford it positively and adequately by their own laws\u201d). <\/span> For instance, Bingham himself, who remained heavily involved in the drafting of the revised Fourteenth Amendment, \u201ccontended 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.\u201d100<\/a><\/sup>Bickel, supra<\/em> note 60, at 60 n.115.<\/span> Other congressmen suggested the same. Representative Thaddeus Stevens remarked that:<\/p>\n

[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 \u2018equal\u2019 protection to the black man. Whatever means of redress is afforded to one shall be afforded to all.101<\/a><\/sup>Id.<\/em> at 46 (quoting Cong. Globe, 39th Cong., 1st Sess. 2459 (1865)).<\/span><\/p>\n

Senator Jacob Howard of Michigan, who was cited by the Court at the peak of its optimism regarding congressional power in the 1960s,102<\/a><\/sup>See <\/em>Katzenbach v. Morgan, 384 U.S. 641, 648 n.8 (1966) (citing Cong. Globe, 39th Cong., 1st Sess. 2768 (1866)). <\/span> similarly argued that Section 1 of the Amendment \u201crestrain[ed] the power of the States and compel[ed] them at all times to respect these great fundamental guarantees\u201d\u2014a directive that would be accomplished by Congress under Section 5, which constituted \u201ca direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.\u201d103<\/a><\/sup>Harris<\/span>, supra<\/em> note 74, at 38. <\/span> Therefore, regardless of the omission of the \u201cnecessary and proper\u201d language in the final amendment, certainly some framers at the time of ratification believed that \u201cCongress, 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\u201d104<\/a><\/sup>Horace Edgar Flack<\/span>, The Adoption of the Fourteenth Amendment<\/span> 64 (1908). <\/span>\u2014that too, by all means necessary.105<\/a><\/sup>See<\/em> Jack M. Balkin, The Reconstruction Power<\/em>, 85 N.Y.U. L. Rev. <\/span>1801, 1807 (2010) (\u201cThe framers of the Reconstruction Amendments sought to ensure that the test of McCulloch<\/em> would apply to the new powers created by the Reconstruction Amendments\u201d).<\/span><\/p>\n

B. The Redemption Period<\/em><\/p>\n

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<\/a><\/sup>See<\/em> Laurence H. Tribe<\/span>, American Constitutional Law<\/span> 921 n.5 (3d ed. 2000). <\/span> 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\u2014a doctrine that suggests that some constitutional issues are better entrusted solely to another branch of government instead of the judiciary.107<\/a><\/sup>See <\/em>Baker v. Carr, 369 U.S. 186, 217 (1962) (\u201cProminent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court\u2019s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question\u201d). <\/span> In upholding the Civil Rights Act of 1875, for instance, the Court in Ex Parte Virginia108<\/a><\/sup><\/em>100 U.S. 339 (1879).<\/span><\/em> explained that through the Fourteenth Amendment, \u201c[i]t is the power of Congress\u201d\u2014not \u201cthe judicial power<\/em>\u201d\u2014\u201cwhich has been enlarged. Congress is authorized to enforce <\/em>the prohibitions by appropriate legislation.\u201d109<\/a><\/sup>Id.<\/em> at 345 (emphasis in original). <\/span> And in doing so, Congress\u2019 Section 5 enforcement power extends to:<\/p>\n

[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<\/a><\/sup>Id.<\/em> at 345\u201346. <\/em><\/span><\/p>\n

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.<\/p>\n

In retrospect, however, both Congress\u2019 initial broad understanding of its new powers and the Court\u2019s 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<\/a><\/sup>See<\/em> Laurent B. Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts<\/em>, 73 Yale L.J. <\/span>1353, 1361 (1964) (\u201cIn 1876 the structure of Reconstruction was already crumbling and its impending defeat was evident\u201d). <\/span> \u201cOn 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.\u201d112<\/a><\/sup>Id. <\/em>at 1373. <\/span> In 1872, the Court in the Slaughterhouse Cases113<\/a><\/sup><\/em>83 U.S. (16 Wall.) 36, 78\u201379 (1873).<\/span><\/em> 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. Cruikshank114<\/a><\/sup><\/em>92 U.S. 542, 554 (1875). <\/span><\/em> hinted that the purpose of the Fourteenth Amendment was to give the federal government the means to ensure that states<\/em> 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 Cases115<\/a><\/sup><\/em>109 U.S. 3, 11 (1883). <\/span><\/em> and United States v. Harris<\/em>.116<\/a><\/sup>106 U.S. 629, 639 (1883). <\/span> Altogether, the Court in the Redemption Period wound up \u201cadopting an extremely narrow view of the legitimate objects of the amendments\u201d despite initially recognizing the broad scope of the Civil War Amendments.117<\/a><\/sup>Tribe<\/span>, supra<\/em> note 106, at 921. For an example of why the state action doctrine has been criticized as a misreading of the Fourteenth Amendment, see<\/em> Erwin Chemerinsky, Rethinking State Action<\/em>, 80 Nw. U. L. Rev.<\/span> 503 (1985). <\/span> 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<\/a><\/sup>Id. <\/em>at 922 n.12 (\u201cIndeed, in 1894 Congress repealed the most important of the Reconstruction civil rights statutes which the Supreme Court had not struck down, the suffrage protections of the Enforcement Act and the Force Act\u201d).<\/span><\/p>\n

C. The Warren and Burger Courts<\/em><\/p>\n

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<\/a><\/sup>See<\/em> Tribe<\/span>, supra<\/em> note 106, at 921\u201322. <\/span> That silence, however, did not remain for very long.120<\/a><\/sup>See id. <\/em><\/span> 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\u2019 full potential.121<\/a><\/sup>See id. <\/em><\/span><\/p>\n

In a prelude to its forthcoming Fourteenth Amendment jurisprudence, the Warren Court in South Carolina v. Katzenbach122<\/a><\/sup><\/em>383 U.S. 301 (1966).<\/span><\/em> upheld provisions of the Voting Rights Act of 1965 passed pursuant to Congress\u2019 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: \u201cThe Congress shall have power to enforce this article by appropriate legislation.\u201d123<\/a><\/sup>U.S. Const.<\/span> amend. XV, \u00a7 2. <\/span> In interpreting Section 2, the Court rejected the idea that there are \u201cany such artificial rules under \u00a7 2 of the Fifteenth Amendment\u201d that suggest that \u201cCongress may appropriately do no more than to forbid violations of the Fifteenth Amendment in general terms\u2014that the task of fashioning specific remedies or of applying them to particular localities must necessarily be left entirely to the courts.\u201d124<\/a><\/sup>South Carolina<\/em>, 383 U.S. at 327. <\/span> Instead, the Court found that the Section 2 enforcement power was, in essence, as broad as Congress\u2019 power under the Necessary and Proper Clause as explained by Chief Justice Marshall in McCulloch v. Maryland<\/em>:125<\/a><\/sup>17 U.S. 316 (1819). <\/span> \u201cLet 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.\u201d126<\/a><\/sup>South Carolina<\/em>, 383 U.S. at 326 (quoting McCulloch<\/em>, 17 U.S. at 421). <\/span> The question that remained following the Court\u2019s decision in South Carolina<\/em> was whether Section 5 of the Fourteenth Amendment could also be read so broadly\u2014a subject that Professor Laurence Tribe noted was \u201cof even greater controversy than Congress\u2019 power under the Fifteenth Amendment.\u201d127<\/a><\/sup>Tribe<\/span>, supra<\/em> note 106, at 936. <\/span><\/p>\n

The Warren Court wasted little time in answering that question. The same year it decided South Carolina<\/em>, the Court addressed the scope of congressional power under the analogous Section 5 of the Fourteenth Amendment in Katzenbach v. Morgan<\/em>.128<\/a><\/sup>384 U.S. 641 (1966). <\/span> 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<\/a><\/sup>Id.<\/em>; see<\/em> 52 U.S.C.A. \u00a7 10303(e).<\/span> Registered voters in New York argued that Section 4(e)\u2019s nullification of the state\u2019s literacy test was unconstitutional under the Court\u2019s decision in Lassiter v. Northampton County Board of Elections<\/em>,130<\/a><\/sup>360 U.S. 45 (1959).<\/span> which held that literacy requirements did not violate the Equal Protection Clause.131<\/a><\/sup>Morgan<\/em>, 384 U.S. at 648. <\/span> The Supreme Court disagreed.132<\/a><\/sup>Id. <\/em><\/span> 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 \u201cis 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.\u201d133<\/a><\/sup>Id. <\/em>at 651. <\/span> In other words, much like the abolitionists who supported Bingham\u2019s original proposal for the Fourteenth Amendment, and those who continued to emphasize the broad sweep of congressional power after the proposal\u2019s defeat, the Court argued that any legislation passed by Congress pursuant to its Section 5 power is constitutional as long as it meets McCulloch<\/em>\u2019s traditional rationality test\u2014the same approach the Court had applied in South Carolina<\/em>.134<\/a><\/sup>See id. <\/em>at 650. <\/span><\/p>\n

Justice Brennan offered two different rationales for why Congress could outlaw literacy tests despite the Court\u2019s earlier decision in Lassiter<\/em>.135<\/a><\/sup>Id.<\/em> at 652\u201356. <\/span> First, Congress could provide a prophylactic remedy to the discriminatory treatment the Puerto Rican community residing in New York was experiencing by arming the \u201ccommunity [with] the right that is \u2018preservative of all rights\u2019\u201d: the right to vote.136<\/a><\/sup>Id.<\/em> at 652 (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). <\/span> As explained by Professor Tribe, this theory rested upon Congress\u2019 superior institutional ability \u201cto find facts and frame remedies\u201d and \u201cmarked no doctrinal advance beyond South Carolina v. Katzenbach<\/em>.\u201d137<\/a><\/sup>Tribe<\/span>, supra<\/em> note 106, at 937. <\/span><\/p>\n

The second theory, however, recognized Congress\u2019 role as a legitimate interpreter of the Constitution\u2014in addition to the Court itself. Justice Brennan suggested it was Congress\u2019 \u201cprerogative\u201d to determine for itself that an \u201capplication of New York\u2019s 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.\u201d138<\/a><\/sup>Morgan<\/em>, 384 U.S. at 656. <\/span> This theory proved to be much more radical,139<\/a><\/sup>Tribe<\/span>, supra<\/em> note 106, at 937.<\/span> despite being one of the original possible interpretations of the Fourteenth Amendment.140<\/a><\/sup>See <\/em>discussion supra<\/em> Section II.A.<\/span><\/p>\n

For the next thirty-one years, the Court did little to clarify the meaning of the \u201cMorgan<\/em> power,\u201d as the first theory came to be known.141<\/a><\/sup>See <\/em>Tribe<\/span>, supra<\/em> note 106, at 937.<\/span> In 1970, the Court considered in Oregon v. Mitchell142<\/a><\/sup><\/em>400 U.S. 112 (1970).<\/span><\/em> 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<\/a><\/sup>See <\/em>Tribe<\/span>, supra<\/em> note 106, at 937\u201338. <\/span> Despite the Court\u2019s earlier decision in Morgan<\/em>, the Mitchell<\/em> Court was sharply divided about the scope of the Section 5 enforcement power.144<\/a><\/sup>Id. <\/em>at 937. <\/span> Five Justices wrote separate opinions, with no single opinion joined by more than three Justices.145<\/a><\/sup>Id. <\/em>at 938. <\/em><\/span> 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 \u201cpreserved to the States by the Constitution\u201d and Congress was not trying to \u201celiminat[e] discrimination on account of race\u201d146<\/a><\/sup>Mitchell<\/em>, 400 U.S. at 130. <\/span>\u2014a conclusion that all the other Justices rejected but wound up becoming the decisive holding of the case.147<\/a><\/sup>Tribe<\/span>, supra<\/em> note 106, at 938. <\/span><\/p>\n

Though the significance of Mitchell<\/em> is uncertain, some of the other Justices\u2019 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<\/em>. Justice Brennan, joined by Justices Byron White and Thurgood Marshall, wrote separately in Mitchell <\/em>that \u201cSection 5 empowers Congress to make its own determination on the matter,\u201d especially given its superior fact-finding abilities.148<\/a><\/sup>Mitchell<\/em>, 400 U.S. at 248 (Brennan, J., concurring in part and dissenting in part).<\/span> In contrast to Congress, the judiciary, they explained, is an \u201cinappropriate forum for the determination of complex factual questions of the kind so often involved in constitutional adjudication.\u201d149<\/a><\/sup>Id. <\/em>at 247\u201348. <\/span> Justice William Douglas also wrote separately to emphasize that because \u201c[t]he powers granted Congress by Section 5 of the Fourteenth Amendment to \u2018enforce\u2019 the Equal Protection Clause are \u2018the same broad powers expressed in the Necessary and Proper Clause,\u2019\u201d Congress could have \u201cwell conclude[d] that a reduction in the voting age from 21 to 18 was needed in the interest of equal protection.\u201d150<\/a><\/sup>Id. <\/em>at 141 (Douglas, J., concurring in part and dissenting in part).<\/span><\/p>\n

The Burger Court in the 1980s fared no better than the Warren Court in explaining Morgan<\/em>. In Fullilove v. Klutznick<\/em>,151<\/a><\/sup>448 U.S. 448 (1980). <\/span> Chief Justice Burger wrote that with regard to its \u201cauthority to enforce equal protection guarantees,\u201d \u201cCongress 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.\u201d152<\/a><\/sup>Id.<\/em> at 483\u201384. <\/span> However, just three years later, Chief Justice Burger dissented in EEOC v. Wyoming<\/em>,153<\/a><\/sup>460 U.S. 226 (1983). <\/span> writing for himself and three other Justices that he did not agree with the proposition \u201cthat Congress can define rights wholly independently of our case law.\u201d154<\/a><\/sup>Id.<\/em> at 262 (Burger, C.J., dissenting). <\/span> 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<\/em> power.155<\/a><\/sup>See <\/em>Tribe<\/span>, supra<\/em> note 106, at 941.<\/span><\/p>\n

As they waited for guidance from the Court, legal scholars vigorously debated the Morgan<\/em> power on their own.156<\/a><\/sup>See id. <\/em><\/span> What makes Congress a legitimate interpreter of the Constitution, if at all? Does the Morgan<\/em> power align with our constitutional structure? If Congress could theoretically expand constitutional rights using the Morgan <\/em>power, then could it also restrict them? Out of these debates, two main concerns emerged about the Morgan<\/em> power. First, allowing a simple majority of Congress to define the meaning of entire constitutional provisions not only conflicts with Chief Justice Marshall\u2019s emphatic assertion that it is \u201cthe province and duty of the judicial department to say what the law is,\u201d but also undermines our whole constitutional structure by giving Congress the ability to circumvent the amendment process laid out in Article V.157<\/a><\/sup>See<\/em> Oregon v. Mitchell, 400 U.S. 112, 204\u201305 (1970) (Harlan, J., concurring in part and dissenting in part) (\u201cCongress\u2019 expression of the view that it does have power to alter state suffrage qualifications is entitled to the most respectful consideration by the judiciary, coming as it does from a coordinate branch of government, this cannot displace the duty of this Court to make an independent determination whether Congress has exceeded its powers. The reason for this goes beyond Marshall\u2019s assertion that: \u2018It is emphatically the province and duty of the judicial department to say what the law is.\u2019 It inheres in the structure of the constitutional system itself. Congress is subject to none of the institutional restraints imposed on judicial decisionmaking; it is controlled only by the political process. In Article V, the Framers expressed the view that the political restraints on Congress alone were an insufficient control over the process of constitution making. The concurrence of two-thirds of each House and of three-fourths of the States was needed for the political check to be adequate. To allow a simple majority of Congress to have final say on matters of constitutional interpretation is therefore fundamentally out of keeping with the constitutional structure\u201d); William Cohen, Congressional Power to Interpret Due Process and Equal Protection<\/em>, 27 Stan. L. Rev.<\/span> 603, 606 (1975) (\u201c[T]he majority [in Morgan<\/em>] stood Marbury v. Madison<\/em> on its head by judicial deference to congressional interpretation of the Constitution\u201d). <\/span> Second, as Justice John Marshall Harlan II noted in his dissent in Morgan<\/em>, the Morgan<\/em> power also appears to give Congress the ability to contract constitutional guarantees.158<\/a><\/sup>See<\/em> Katzenbach v. Morgan, 384 U.S. 641, 668 (Harlan, J., dissenting) (\u201cIn effect the Court reads Section 5 of the Fourteenth Amendment as giving Congress the power to define the substantive scope of the Amendment. If that indeed be the true reach of Section 5, then I do not see why Congress should not be able as well to exercise its Section 5 \u2018discretion\u2019 by enacting statutes so as in effect to dilute equal protection and due process decisions of this Court\u201d).<\/span> After all, \u201c[i]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.\u201d159<\/a><\/sup>Id. <\/em><\/span> In the rush to allay these concerns, however, legal scholars\u2014even those who defended Morgan<\/em>\u2014placed various limits on what the Morgan <\/em>power could mean. Under the view of these scholars, the Morgan<\/em> 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\u2019s clear mistake rule: the Court \u201ccan 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\u2014so clear that it is not open to rational question.\u201d160<\/a><\/sup>James B. Thayer, The<\/em> Origin and Scope of the American Doctrine of Constitutional Law<\/em>, 7 Harv. L. Rev.<\/span> 129, 144 (1893).<\/span><\/p>\n

The criticisms and defenses of Morgan<\/em> can largely be grouped into five separate categories. One defense of Morgan<\/em>, 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\u2019 findings.161<\/a><\/sup>See <\/em>Cox, Foreword<\/em>, supra <\/em>note 37, at 107; see also<\/em> Archibald Cox, The Role of Congress in Constitutional Determinations<\/em>, 40 U. Cin. L. Rev.<\/span> 199, 205\u201311 (1971) [hereinafter Cox, The Role of Congress<\/em>].<\/span> According to Professor Cox:<\/p>\n

[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<\/a><\/sup>Cox, Foreword<\/em>, supra <\/em>note 37, at 107. <\/span><\/p>\n

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<\/a><\/sup>See <\/em>Cox, The Role of Congress<\/em>, supra<\/em> note 161, at 209. <\/span> And, as other legal scholars like Professor Irving Gordon have explained, \u201cwhere 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.\u201d164<\/a><\/sup>Irving A. Gordon, The Nature and Uses of Congressional Power Under Section Five of the Fourteenth Amendment to Overcome Decisions of the Supreme Court<\/em>, 72 Nw. U. L. Rev.<\/span> 656, 680 (1977).<\/span> Under this understanding of Morgan<\/em>, there is no conflict with Marbury<\/em> because Congress is simply deciding questions of fact and not law.165<\/a><\/sup>See <\/em>Tribe<\/span>, supra<\/em> note 106, at 943. <\/span><\/p>\n

Another theory of Morgan<\/em>, however, is that Congress only has the power to define rights within the conceptual limits fixed by the Supreme Court\u2014a view of congressional power that many abide by today. For instance, Professor Lawrence Sager argued that Congress can use its Section 5 power to \u201clegislate against a broader swath of state practices than the Court has found or would find to violate the norm of equal protection.\u201d166<\/a><\/sup>Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms<\/em>, 91 Harv. L. Rev.<\/span> 1212, 1239 (1978). <\/span> In doing so, Congress would be merely \u201cenforcing 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.\u201d167<\/a><\/sup>Id. <\/em><\/span> 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<\/a><\/sup>Id.<\/em> at 1240. <\/span> This theory seems to be closer to what Justice Harlan II argued in his dissent in Morgan<\/em>:<\/p>\n

When recognized state violations of federal constitutional standards have occurred, Congress is of course empowered by \u00a7 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 \u00a7 5 power into play at all.169<\/a><\/sup>Katzenbach v. Morgan, 384 U.S. 641, 666 (Harlan, J., dissenting). <\/span><\/p>\n

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.<\/p>\n

A third approach to Morgan<\/em> focused on Congress\u2019 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\u2019 greater flexibility in accommodating multiple conflicting interests makes Congress well suited to \u201cserve as an adjunct\u201d to the Court, helping it \u201crefine [its] interpretations of the Constitution.\u201d170<\/a><\/sup>Burt, supra <\/em>note 83, at 114, 134. <\/span> Under Professor Burt\u2019s view, Morgan <\/em>can best be understood as helping facilitate an \u201cordered dialogue between Court and Congress on the detailed application of constitutional doctrine\u201d\u2014though the Court ultimately gets to set \u201cthe basic terms\u201d for the resulting conversation.171<\/a><\/sup>Id. <\/em>at 118, 134. <\/span><\/p>\n

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<\/a><\/sup>See <\/em>Cohen, supra <\/em>note 157, at 614. <\/span> Because \u201cCongress presumably reflects a balance between both national and state interests and hence is better able to adjust such conflicts,\u201d \u201ca congressional judgment resolving at the national level an issue that could\u2014without constitutional objection\u2014be decided the same way at the state level, ought normally to be binding on the courts.\u201d173<\/a><\/sup>Id. <\/em><\/span> On the other hand, according to Professor Cohen, a \u201ccongressional 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.\u201d174<\/a><\/sup>Id. <\/em><\/span><\/p>\n

The final hedge on the meaning of the Morgan<\/em> power came from the majority opinion in Morgan<\/em> itself. In response to the potential concern of the two-way ratchet, Justice Brennan added a footnote restricting Congress\u2019 power under Section 5 to a one-way ratchet: \u201cWe emphasize that Congress\u2019 power under \u00a7 5 is limited to adopting measures to enforce the guarantees of the Amendment; \u00a7 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.\u201d175<\/a><\/sup>Katzenbach v. Morgan, 384 U.S. 641, 651 n.10 (1966). <\/span> Though fixing a limit on the Morgan<\/em> power, Justice Brennan\u2019s footnote does not address the difficult question of how to tell which way the \u201cdue process or equal protection handle\u201d \u201cis turning.\u201d176<\/a><\/sup>Cohen, supra <\/em>note 157, at 606\u201307. <\/span> Inevitably, an expansion of rights for some can mean a contraction in rights for others.177<\/a><\/sup>See id. <\/em>at 607. <\/em><\/span><\/p>\n

All five of these approaches to Morgan<\/em> are certainly permissible readings of the Court\u2019s decision. In many ways, the original example of the ADA\u2019s \u201cFindings and Purposes\u201d section posed at the start of this Essay, for instance, can easily be slotted away under many of these understandings of Morgan<\/em>. Many disability rights advocates, in their briefs, for example, attempted to justify their argument that Congress had changed the standard of review in the \u201cFindings and Purposes\u201d section of the ADA by noting that Congress was merely exercising its fact-finding power, and the Court should take notice of that.178<\/a><\/sup>Petition for Writ of Certiorari at 20, Cal. Ass\u2019n of the Physically Handicapped v. FCC, 499 U.S. 975 (1991) (No. 90-1086).<\/span> Putting aside Congress\u2019 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\u2014though these tiers are found nowhere in the text of the Constitution.179<\/a><\/sup>See<\/em> Richard H. Fallon Jr., Strict Judicial Scrutiny<\/em>, 54 UCLA L. Rev.<\/span> 1267, 1274 (2007).<\/span><\/p>\n

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 <\/em>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<\/em> standing for the principle of \u201ccooperation\u201d180<\/a><\/sup>Sager, supra<\/em> note 166, at 1240. <\/span> or characterize the decision as an \u201cinvitation\u201d181<\/a><\/sup>Burt, supra<\/em> note 83, at 133. <\/span> for the two branches to engage in \u201ccontemporary constitutional dialogue\u201d182<\/a><\/sup>Stephen L. Carter, The <\/em>Morgan Power and the Forced Reconsideration of Constitutional Decisions<\/em>, 53 U. Chi. L. Rev.<\/span> 819, 859 (1986).<\/span> still subject Congress to a high level of judicial control, and inevitably always give the Court the final word in every resulting conversation.183<\/a><\/sup>See id. <\/em><\/span> But if carried to its fullest extent, the Morgan<\/em> 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\u2019s guarantees in addition to the Court itself. To do that, one must understand why judicial supremacy is a gross misunderstanding of our constitutional structure\u2014a topic addressed in Part II of this Article.184<\/a><\/sup>See<\/em> discussion infra<\/em> Part III. <\/span><\/p>\n

D. The Rehnquist Revolution and Modern Constitutional Law<\/em><\/p>\n

In the background of all this turmoil and confusion over the true meaning of Morgan<\/em>\u2014and, by extension, Section 5 of the Fourteenth Amendment\u2014the composition of the Court changed.185<\/a><\/sup>See generally <\/em>Thomas W. Merrill, The Making of the Second Rehnquist Court: A Preliminary Analysis<\/em>, 47 St. Louis U. L.J.<\/span> 569 (2003) (discussing composition and changes in character of the Rehnquist Court over time). <\/span> In 1986, the same year Justice Antonin Scalia joined the Court,186<\/a><\/sup>Maria Garcia and Amisha Padnani, Justice Antonin Scalia: His Life and Career<\/em>, N.Y. Times<\/span> (Feb. 14, 2016), https:\/\/www.nytimes.com\/interactive\/2016\/02\/14\/us\/scalia-timeline-listy.html [https:\/\/perma.cc\/AQP2-EYB6].<\/span> then-Justice Rehnquist became Chief Justice.187<\/a><\/sup>Andrew Glass, William Rehnquist Sworn in as Chief Justice, Sept. 26, 1986<\/em>, Politico<\/span> (Sept. 26, 2018), https:\/\/www.politico.com\/story\/2018\/09\/26\/william-rehnquist-sworn-in-as-chief-justice-sept-26-1986-834960 [https:\/\/perma.cc\/QJR9-FRD3].<\/span> In 1988, Justice Anthony Kennedy was appointed to the bench.188<\/a><\/sup>Melissa Quinn, Justice Anthony Kennedy to Retire from Supreme Court<\/em>, Washington Examiner <\/span>(June 27, 2018), https:\/\/www.washingtonexaminer.com\/news\/1025864\/justice-anthony-kennedy-to-retire-from-supreme-court\/ [https:\/\/perma.cc\/V6XX-LE3Z].<\/span> And in the early 1990s, Justices David Souter189<\/a><\/sup>Nina Totenberg, Supreme Court Justice Souter to Retire<\/em>, NPR<\/span> (Apr. 30, 2009), https:\/\/www.npr.org\/2009\/04\/30\/103694193\/supreme-court-justice-souter-to-retire [https:\/\/perma.cc\/QUF8-TXR4].<\/span> and Clarence Thomas followed.190<\/a><\/sup>John E. Yang and Sharon LaFraniere, Bush Picks Thomas for Supreme Court<\/em>, The Washington Post <\/span>(July 1, 1991), https:\/\/www.washingtonpost.com\/archive\/politics\/1991\/07\/02\/bush-picks-thomas-for-supreme-court\/943b9fda-e079-405e-974e-14c2d0cd999b\/ [https:\/\/perma.cc\/UC4L-22NT].<\/span> Before long, the Court was again composed of a conservative majority. The subsequent period on the Court\u2014dubbed the \u201cRehnquist Revolution\u201d\u2014revived the power of the states at the expense of congressional power.191<\/a><\/sup>See generally<\/em> Erwin Chemerinsky, The Rehnquist Revolution<\/em>, 2 Pierce L. Rev.<\/span> 1 (2004).<\/span><\/p>\n

The Rehnquist Court began by dramatically shrinking the scope of Congress\u2019 powers under the Commerce Clause.192<\/a><\/sup>See <\/em>United States v. Lopez, 514 U.S. 549 (1995). <\/span> From there on, it was only a matter of time before the Rehnquist Court set its sights on Congress\u2019 Section 5 power.193<\/a><\/sup>This occurred even though a plurality of the Rehnquist Court in 1989 had seemingly affirmed an expansive interpretation of Morgan<\/em>. See <\/em>City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) (\u201cThe power to \u2018enforce\u2019 may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations\u201d).<\/span> That decision ultimately came in 1997 in City of Boerne v. Flores<\/em>.194<\/a><\/sup>521 U.S. 507 (1997). <\/span><\/p>\n

The story leading up to the Court\u2019s infamous restriction of congressional power in City of Boerne<\/em> actually starts seven years earlier with its decision in Employment Division, Department of Human Resources of Oregon v. Smith<\/em>.195<\/a><\/sup>494 U.S. 872 (1990). <\/span> 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<\/a><\/sup>Mark Tushnet<\/span>, Taking the Constitution Away From the Courts<\/span> 3 (2000). <\/span> As a member of the church, Smith ingested peyote, a hallucinogenic, for sacramental purposes during a ceremony.197<\/a><\/sup>Employment Division<\/em>, 494 U.S. at 874; Tushnet, <\/span>supra<\/em> note 196, at 3.<\/span> He was subsequently fired from his job and denied unemployment benefits by Oregon.198<\/a><\/sup>Tushnet, <\/span>supra<\/em> note 196, at 3. <\/span> Though Smith recognized that the state\u2019s 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<\/a><\/sup>Id.<\/em> at 3\u20134.<\/span> The Court thought otherwise.200<\/a><\/sup>Employment Division<\/em>, 494 U.S. at 890. <\/span> 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\u2019s exercise of religion.201<\/a><\/sup>Id.<\/em> at 881\u201382. <\/span> In rejecting Smith\u2019s Free Exercise Clause claim, the Court, however, broke with the test it set forth in Sherbert v. Verner<\/em>,202<\/a><\/sup>374 U.S. 398 (1963).<\/span> under which any governmental action that substantially burdens a religious practice must be justified by a \u201ccompelling state interest.\u201d203<\/a><\/sup>Id.<\/em> at 403. <\/span><\/p>\n

Almost immediately, a coalition \u201cspann[ing] the religious right and the secular left\u201d criticized the Court\u2019s decision.204<\/a><\/sup>Tushnet<\/span>, supra<\/em> note 196, at 4. <\/span> 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<\/a><\/sup>42 U.S.C. \u00a7 2000bb.<\/span> According to Congress, \u201cthe Supreme Court [in Employment Division<\/em>] virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion\u201d by abandoning the compelling interest test206<\/a><\/sup>Id.<\/em> \u00a7 2000bb(a)(4).<\/span>\u2014\u201ca workable test for striking sensible balances between religious liberty and competing prior governmental interest.\u201d207<\/a><\/sup>Id.<\/em> \u00a7 2000bb(a)(5).<\/span> Because of the Court\u2019s misstep, Congress sought \u201cto restore the compelling interest test as set forth in Sherbert v. Verner<\/em>.\u201d208<\/a><\/sup>Id.<\/em> \u00a7 2000bb(b)(1).<\/span><\/p>\n

Only a few years later, RFRA\u2014and consequently, Congress\u2019 mettle in rebuking the Court\u2014was put to the test.209<\/a><\/sup>See<\/em> City of Boerne v. Flores, 521 U.S. 507, 511 (1997). <\/span> 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<\/a><\/sup>Id.<\/em> at 512.<\/span> Upon seeing the Archbishop\u2019s plans for the church, city officials \u201cbecame concerned that the new construction would destroy the old church\u2019s appearance and would interfere with the city\u2019s economic development plan, which was to promote tourism by preserving the area\u2019s historic character.\u201d211<\/a><\/sup>Tushnet<\/span>, supra<\/em> note 196, at 4. <\/span> 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\u2019s permit.212<\/a><\/sup>See City of Boerne<\/em>, 521 U.S. at 512. <\/span> The church sued on the grounds that the city\u2019s refusal to issue the permit violated RFRA.213<\/a><\/sup>Id.<\/em><\/span> The city, on the other hand, countered that in \u201cenacting RFRA Congress exceeded the scope of its enforcement power under \u00a7 5 of the Fourteenth Amendment.\u201d214<\/a><\/sup>Id. <\/em><\/span><\/p>\n

In City of Boerne<\/em>, the Supreme Court ultimately held RFRA unconstitutional.215<\/a><\/sup>Id.<\/em> at 536. <\/span> But the decision\u2019s implications affected much more than just RFRA. Though recognizing that \u201c[t]here is language in [the Court\u2019s] opinion in [Morgan<\/em>] which could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in \u00a7 1 of the Fourteenth Amendment,\u201d Justice Kennedy wrote for the majority that \u201c[t]his is not a necessary interpretation . . . or even the best one.\u201d216<\/a><\/sup>Id.<\/em> at 527\u201328. <\/span> Instead, he argued, \u201c[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary.\u201d217<\/a><\/sup>Id.<\/em> at 524. <\/span> Furthermore, to ensure that Congress stays within its designated constitutional role, the Court explained that in congressional measures enacted pursuant to Section 5, \u201c[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.\u201d218<\/a><\/sup>Id.<\/em> at 520. In the case of RFRA, the sparse legislative record lacked examples of modern religious persecution through general laws, indicating that \u201cCongress\u2019 response was out of proportion.\u201d See <\/em>Tushnet<\/span>, supra<\/em> note 196, at 5. <\/span> In one fell swoop, the Court seemingly killed the Morgan <\/em>power.<\/p>\n

Subsequent cases only confirmed that \u201cthe most enduring part of Morgan<\/em> is not its alternative holding that Congress may take a view different from that of the Court,\u201d219<\/a><\/sup>Tribe<\/span>, supra<\/em> note 106, at 955. <\/span> but rather its first holding that Congress can enact remedial laws targeting violations of \u201ccourt-articulated principles of equal protection.\u201d220<\/a><\/sup>Lowndes, supra<\/em> note 34, at 424. <\/span> In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank<\/em>,221<\/a><\/sup>527 U.S. 627 (1999).<\/span> for instance, the Court affirmed its holding in City of Boerne<\/em>.222<\/a><\/sup>See id.<\/em> at 639\u201340. <\/span> 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 \u201cprotect property interests that it has created in the first place under Article I.\u201d223<\/a><\/sup>Id.<\/em> at 642. <\/span> In Dickerson v. United States<\/em>,224<\/a><\/sup>530 U.S. 428 (2000). <\/span> the Court, once again citing City of Boerne<\/em> for the proposition that \u201cCongress may not legislatively supersede [the Court\u2019s] decisions interpreting and applying the Constitution,\u201d225<\/a><\/sup>Id. <\/em>at 437.<\/span> struck down an act of Congress that conflicted with the rights detailed in Miranda v. Arizona226<\/a><\/sup><\/em>384 U.S. 436 (1966). <\/span><\/em> for criminal suspects. That is, the Court held that Congress may not undermine the Court\u2019s constitutional decisions, even though the Court in Miranda<\/em> specifically \u201cinvited legislative action to protect the constitutional right against coerced self-incrimination\u201d as long as that legislative alternative is \u201cat least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it.\u201d227<\/a><\/sup>Dickerson<\/em>, 530 U.S. at 429 (citing Miranda<\/em>, 384 U.S. at 467). <\/span><\/p>\n

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\u2019s worth of precedent and thought recognizing Congress\u2019 role in constitutional interpretation of the scope of the Fourteenth Amendment.228<\/a><\/sup>See<\/em> discussion supra<\/em> II.A\u2013C.<\/span><\/p>\n

III. Reconciling a Broad Section 5 Power with Judicial Review<\/span><\/p>\n

In taking an aggressive stance on the Court\u2019s role in determining the scope of the Fourteenth Amendment, the Rehnquist Court threatened to undo numerous civil rights statutes\u2014including the ADA. These statutes were created without legislative records equipped to appease the post-Boerne<\/em> Court.229<\/a><\/sup>See<\/em> James Leonard, The Shadows of Unconstitutionality: How the New Federalism May Affect the Anti-Discrimination Mandate of the Americans with Disabilities Act<\/em>, 52 Ala. L. Rev.<\/span> 91, 127\u201348 (2000). <\/span> And \u201c[e]ven were it possible to squeeze out of these examples [in the legislative record] a pattern of unconstitutional discrimination,\u201d230<\/a><\/sup>Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 372 (2001). <\/span> statutes like the ADA would probably still fail the Boerne<\/em> test of congruence and proportionality.231<\/a><\/sup>See<\/em> id.<\/em><\/span> Why? Because the statutory remedies and duties created by these statutes \u201cfar exceed\u201d what the Court is likely to find constitutionally required under the Fourteenth Amendment.232<\/a><\/sup>See<\/em> id.<\/em><\/span><\/p>\n

And therein lies the problem. Implicit in the Rehnquist Court\u2019s decisions like Boerne<\/em> 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\u2014that of judicial supremacy. In claiming that \u201c[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary,\u201d233<\/a><\/sup>City of Boerne v. Flores, 521 U.S. 507, 524 (1997). <\/span> the Rehnquist Court \u201cmonopolize[s] control over the Constitution.\u201d234<\/a><\/sup>Larry D. Kramer, Foreword: We the Court<\/em>, 115 Harv. L. Rev.<\/span> 5, 144 (2001) [hereinafter Kramer, Foreword<\/em>]. Professor Kramer\u2019s Foreword<\/em> formed the basis of his later book on popular constitutionalism. See generally<\/em> Larry D.<\/span> Kramer<\/span>, The People Themselves: Popular Constitutionalism and Judicial Review<\/span> (2004). <\/span> 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<\/em> that \u201c[i]t is emphatically the province and duty of the judicial department to say what the law is\u201d235<\/a><\/sup>Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).<\/span>\u2014a line \u201cthat every lawyer and law student knows by heart, almost by instinct.\u201d236<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 5.<\/span><\/p>\n

But what exactly did Chief Justice Marshall mean in Marbury<\/em>? Everyone shares the baseline understanding that the Constitution is \u201cthe Supreme Law of the Land.\u201d237<\/a><\/sup>U.S. Const.<\/span> art. VI, cl. 2.<\/span> But who gets to decide when the Constitution has been violated? Chief Justice Marshall attempted to clarify just that in Marbury<\/em>. In dicta, Marshall recognized that the plain language of the Supremacy Clause authorizes courts to invalidate legislation inconsistent with the Constitution238<\/a><\/sup>See<\/em> Marbury<\/em>, 5 U.S. at 177; see, e.g.<\/em>, Michael J. Klarman, How Great were the Great Marshall Court Decisions<\/em>, 87 Va. L. Rev.<\/span> 1111, 1118 (2001).<\/span>\u2014a power that, as Justice Kennedy later explained, exists because \u201cthe 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.\u201d239<\/a><\/sup>United States v. Lopez, 514 U.S. 549, 578 (1995) (Kennedy, J., concurring). <\/span><\/p>\n

Yet, nothing in the text of Marbury<\/em> itself suggests that the framers intended the Court to be the sole expositor of the Constitution\u2019s 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<\/a><\/sup>See<\/em> Kramer, Foreword<\/em>, supra<\/em> note 234, at 162 (\u201cAnd no matter how often the Court repeats that it has been the ultimate expositor of the Constitution since Marbury<\/em>, it still will not have been so. Popular constitutionalism\u2014understood as a domain in which the people are free to settle questions of constitutional law by and for themselves in politics\u2014has been a prominent feature of American constitutional practice from the beginning\u201d).<\/span> Because the Constitution is supreme to all other forms of law, Marbury<\/em> stands for the modest proposition that courts, too, can evaluate the constitutionality of legislative acts.241<\/a><\/sup>See id. <\/em>at 5\u20136.<\/span> Marbury<\/em> affirms the \u201cfundamental principle[] of our society\u201d242<\/a><\/sup>Marbury<\/em>, 5 U.S. at 177. <\/span> 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\u2014\u201cthe most direct expression of the people\u2019s voice\u201d\u2014is enforced.243<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 11.<\/span><\/p>\n

And the idea that some constitutional decisions should be made in a dialogic \u201ctug-of-war\u201d with the other branches is certainly not a modern one either.244<\/a><\/sup>Id.<\/em> at 57.<\/span> 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\u2019s various pronouncements.245<\/a><\/sup>See id.<\/em> at 6. <\/span> 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<\/a><\/sup>See<\/em> Baker v. Carr, 369 U.S. 186, 217 (1962). <\/span> Repeatedly, constitutional law over the years has been shaped by the understanding of the judicial role Marshall first posited in Marbury<\/em>: 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.<\/p>\n

Yet, somehow, Marbury<\/em> has come to stand for a much different proposition today. Though \u201c[b]etween 1803 and 1887, the Court never once<\/em> cited Marbury<\/em> for the proposition of judicial review, even when the Court issued highly controversial decisions such as Dred Scott v. Sandford <\/em>or the Civil Rights Cases<\/em> striking down important congressional legislation,\u201d247<\/a><\/sup>Davison M. Douglas, The Rhetorical Uses of <\/em>Marbury v. Madison: the Emergence of a \u201cGreat Case<\/em>,\u201d<\/em> 39 Wake Forest L. Rev.<\/span> 375, 376\u201377 (2003) (emphasis in original). <\/span> today, Marbury<\/em> is consistently cited by the courts for just that reason.248<\/a><\/sup>See id.<\/em> at 378. <\/span> Citing the magic words of Marbury<\/em> 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. Aaron249<\/a><\/sup><\/em>358 U.S. 1 (1958).<\/span><\/em> in 1958 stated that Marbury<\/em> \u201cdeclared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution\u201d\u2014an idea that \u201chas ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.\u201d250<\/a><\/sup>Id.<\/em> at 18. <\/span> Or in City of Boerne<\/em>, the Court cited Marbury<\/em> for the proposition that \u201cCongress could [not] define its own powers\u201d under the Fourteenth Amendment, as it did exactly that in enlarging its own power.251<\/a><\/sup>City of Boerne v. Flores, 521 U.S. 507, 529 (1997).<\/span> Though \u201c[w]e have never had [a] purely legal Constitution,\u201d cases like these have turned over \u201cstewardship of our Constitution . . . exclusively to lawyers and judges.\u201d252<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 162.<\/span><\/p>\n

This Part pushes back against this rewriting of constitutional history and the rise of judicial supremacy that has been used to limit Congress\u2019 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<\/em>, the historical practice of judicial review looked much different from the way it is used today\u2014and 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><\/sup>As numerous scholars have noted, the many calls for congressional interpretation or interpretation by the demos of the Constitution have \u201cdone so at a high level of abstraction.\u201d David E. Pozen, Judicial Elections as Popular Constitutionalism<\/em>, 110 Colum. L. Rev.<\/span> 2047, 2053 (2010); see also<\/em> Erwin Chemerinsky, In Defense of Judicial Review: The Perils of Popular Constitutionalism<\/em>, 2004 U. Ill. L. Rev. <\/span>673, 676 (2004) (\u201cA major frustration in discussing the body of scholarship arguing for popular constitutionalism is its failure to define the concept with any precision\u201d); Suzanna Sherry, Putting the Law Back in Constitutional Law<\/em>, 25 Const. Comment.<\/span> 461, 463 (2009) (\u201cIt is hard to know how popular constitutionalism would work, since few (if any) of its advocates make any concrete suggestions about how to implement popular constitutional interpretation\u201d). In his famous Foreword for the Harvard Law Review, for instance, Professor Larry Kramer briefly noted in a footnote:

\nthat much of the literature rejecting judicial supremacy is written at too abstract a level to know just what the authors think; they concede that judgments should be enforced but insist that the other branches are participants with the Court in some sort of open conversation or dialogue without ever explaining what this means in practice.

\nKramer, Foreword<\/em>, supra<\/em> note 234, at 8 n.12. This essay aims to fill that gap in by explaining what an open conversation between Congress and the Court could look like and has looked like in the past. In demonstrating that proposition, however, I rely on many of the examples Professor Kramer used to argue that judicial review did not exist prior to Marbury<\/em>. This decision is because, on my review of this early history, I agree with other professors who have argued that judicial review existed before Marbury<\/em>. See<\/em> Klarman, supra<\/em> note 238, at 1113\u201318; see generally<\/em> William Michael Treanor, Judicial Review Before Marbury<\/em>, 58 Stan. L. Rev.<\/span> 455 (2005). My addition to this conversation is that those very examples of judicial review before Marbury<\/em> show that, first, judicial review is very different from judicial supremacy, and second, judicial review, as it was practiced back then, made room for, and often explicitly invited, legislative interpretation of constitutional provisions. <\/span><\/p>\n

A. Judicial Review as a Political-Legal Act<\/em><\/p>\n

Today, the Court is often painted as a counter-majoritarian institution.254<\/a><\/sup>See generally<\/em> Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy<\/em>, 73 N.Y.U. L. Rev.<\/span> 333 (1998). <\/span> In fact, much of modern constitutional legal scholarship has focused on the tension between judicial review and the democratic process\u2014a tension that Professor Alexander Bickel called the \u201ccounter-majoritarian difficulty.\u201d255<\/a><\/sup>See <\/em>Alexander M. Bickel<\/span>, The Least Dangerous Branch: The Supreme Court at the Bar of Politics <\/span>16 (1962) (\u201cThe root difficulty is that judicial review is a counter-majoritarian force in our system\u201d).<\/span> As Professor Bickel explained, the \u201creality [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.\u201d256<\/a><\/sup>Id.<\/em> at 16\u201317. <\/span> 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<\/a><\/sup>See, e.g.<\/em>, id.<\/em><\/span><\/p>\n

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 \u201cnot only defended and justified in terms of the traditional constitution, but . . . was also waged on those terms.\u201d258<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 35.<\/span> 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<\/a><\/sup>Id.<\/em> at 36. <\/span> According to the protestors, because the Stamp Act was \u201cutterly void, and of no binding Force,\u201d \u201c[they knew] Nothing of it\u201d260<\/a><\/sup>Id.<\/em> (quoting John Adams, Address to the Council Chamber of Massachusetts (Dec. 1765), in <\/em>Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay<\/span> 200\u201301 (Josiah Quincy, Jr. ed., Boston: Little, Brown & Co. 1865)). <\/span> and argued that judges \u201cshould pay no Regard to it.\u201d261<\/a><\/sup>Id. <\/em>at 36\u201337 (quoting Francis Bernard, Address to the Council Chamber of Massachusetts (Dec. 1765), in<\/em> Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay<\/span>, supra<\/em> note 260, at 206).<\/span> While only a few courts in Massachusetts ended up joining the protest, the revolutionaries\u2019 instinct to call on the courts heralded the first version of judicial review in American history: the idea that \u201cjudges, no less<\/em> than anyone else, should resist unconstitutional laws.\u201d262<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 37 (emphasis in original). <\/span><\/p>\n

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<\/a><\/sup>See id.<\/em> at 47. <\/span> As the colonies\u2014and later the Constitutional Convention at the federal level\u2014worked to create new legislatures, executives, and judiciaries after declaring independence, popular sovereignty became the background principle of every new constitution.264<\/a><\/sup>See id.<\/em> at 35. <\/span> As James Madison explained, even at the height of his anti-populism stance, constitutional meaning in the new democratic system could not be decided \u201cwithout an appeal to the people themselves; who, as grantors of the commissions, can alone declare its true meaning and enforce its observance\u201d265<\/a><\/sup>The Federalist No.<\/span> 49 (James Madison). <\/span>\u2014a power that had been denied to them under the English constitution.266<\/a><\/sup>See<\/em> Kramer, Foreword<\/em>, supra<\/em> note 234, at 35.<\/span><\/p>\n

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<\/a><\/sup>See id.<\/em> at 53\u201356. <\/span> 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 \u201cexercising the people\u2019s authority to resist\u201d ultra vires<\/em> legislative acts by acting within the power delegated to them by the people.268<\/a><\/sup>Id.<\/em> at 54. <\/span> 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<\/em>.269<\/a><\/sup>J. M. Varnum<\/span>, The Case, Trevett v. Weeden (1787)<\/span>, reprinted in<\/em> 1 Bernard Schwartz, The Bill of Rights: A Documentary History<\/span> 422 (1971).<\/span> In that case, the court struck down a Rhode Island statute that failed to provide the right to a jury trial, saying that \u201cthe people themselves will judge, as the only resort in the last stages of oppression\u201d when \u201cthe Legislative [as] the supreme power in government, [has] violated the constitutional rights of the people;\u201d but in the meantime they \u201crefer those [laws] to the Judiciary courts for determination.\u201d270<\/a><\/sup>Id. <\/em>at 422.<\/em><\/span> It was the case in 1786 when future-Justice James Iredell wrote that \u201cjudges, therefore, must take care at their peril, that every act of Assembly they presume to enforce is warranted by the constitution\u201d\u2014a power that \u201cinevitably resulting from the constitution of their office, they being judges for the benefit of the whole people.\u201d271<\/a><\/sup>An Elector, To the Public, in<\/em> 2 Life and Correspondence of James Iredell<\/span> 148 (Griffith J. McReed., Peter Smith 1949) (1857). <\/span> And it was the case in Commonwealth v. Caton<\/em>,272<\/a><\/sup>8 Va. (4 Call) 5 (1782).<\/span> when the lawyer arguing the case, Edmund Randolph, justified the use of judicial review, saying the \u201cbench 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.\u201d273<\/a><\/sup>William Michael Treanor, The Case of the Prisoners and the Origins of Judicial Review<\/em>, 143 U. Pa. L. Rev. <\/span>491, 512 (1994) (quoting Edmund Randolph, Rough Draft of Argument in<\/em> Respondent v. Lamb <\/em>(the Case of the Prisoners<\/em>)). <\/span> In this context, and countless other instances of judicial review before Marbury<\/em>, judicial review was seen as \u201ca political duty and responsibility rather than a strictly legal one.\u201d274<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 37. <\/span><\/p>\n

This function of judicial review as a political-legal act lingers even today. Some legal scholars have suggested that the \u201cSupreme Court often acts on behalf of a national political majority that has not yet worked its will through legislation.\u201d275<\/a><\/sup>Tushnet<\/span>, supra<\/em> note 196, at 144; see also<\/em> Robert A. Dahl<\/span>, Democracy and its Critics<\/span> 190 (1989) (\u201c[T]he views of a majority of justices of the Supreme Court are never out of line for very long with the views prevailing among the lawmaking majorities of the country\u201d); Robert G. McCloskey<\/span>, The American Supreme Court<\/span> 224 (1960) (\u201c[I]t is hard to find a single historical instance when the Court has stood firm for very long against a really clear wave of public demand\u201d).<\/span> Because some laws \u201care individually too petty, too diversified, and too local to get the attention of a Congress hard pressed with more urgent matters,\u201d276<\/a><\/sup>Duckworth v. Arkansas, 314 U.S. 390, 400 (1941) (Jackson, J., concurring).<\/span> judicial review is just another way for members of the general population\u2014whether one wants to call them \u201cdiscrete and insular minorities,\u201d277<\/a><\/sup>United States v. Carolene Prods. Co.<\/em>, 304 U.S. 144, 152 n.4 (1938).<\/span> or a majority that has simply not built up its political power yet\u2014to 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<\/a><\/sup>This view of courts as majoritarian institutions then raises the question of what precisely would rooting judicial power in the sovereignty of the people mean for the relationship between popular sentiment and minority rights and views? To clarify, the underlying criticism that majoritarian institutions are less protective of minority rights\u2014a criticism often levied against Congress, the original and classic example majoritarian institution\u2014has not exactly borne out. See generally<\/em> Louis Fisher, Protecting Individual Rights: A Broad Public Dialogue<\/em>, 45 J. Sup. Ct. Hist.<\/span> 66 (2020). Similarly, reimagining courts as majoritarian institutions, and encouraging judges to do so as well, does not necessarily entail the erosion of minority rights. Instead, the unique attributes of the judicial system and the ability of various groups to use the courts to address narrow and insular questions that would otherwise go unaddressed by Congress suggest that regardless of the lens one views them through\u2014majoritarian or not\u2014courts can and should play a role in protecting everyone\u2019s rights. Furthermore, a constitutional structure that enables multiple system actors, not just the courts, to interpret the Constitution means that any judicial contraction of rights would be prevented by the other branches of government. See<\/em> discussion infra<\/em> Section IV.B. For a discussion of how judicial review can be used to ensure the fair representation of minority interests and make effective representative government, see generally<\/em> John Hart Ely<\/span>, Democracy and Distrust: A Theory of Judicial Review<\/span> (1980). <\/span><\/p>\n

In that way, popular constitutionalism in early American history looked a lot more like what is today called the theory of departmentalism,279<\/a><\/sup>Professor David Pozen explains that three models of popular constitutionalism have emerged over the years. See<\/em> Pozen, supra<\/em> note 253, at 2060\u201364. The first model, what he terms \u201cmodest popular constitutionalism,\u201d \u201cgenerally reject[s] the notion that the people or their representatives can ignore a judicial ruling because they disagree with it. They accept that courts may occasionally strike down statutes or contravene majority preferences as part of their constitutionally assigned role.\u201d Id.<\/em> at 2060. The second model, called \u201crobust popular constitutionalism,\u201d suggests that \u201cthe interpretive authority of the people trumps that of the judiciary any time the people are sufficiently ready and willing to use it.\u201d Id.<\/em> at 2061. Finally, the third model, known as \u201cdepartmentalism,\u201d builds on the second model by adding that \u201cthe coordinate branches of government possess independent authority to interpret the Constitution.\u201d Id.<\/em> at 2063. This Article adopts the third model of popular constitutionalism. <\/span> because all three branches, including the judiciary, are subordinate to the people, each department is duty bound to ensure that the Constitution\u2014\u201cthe voice of the people themselves\u201d and \u201cthe first law of the land\u201d280<\/a><\/sup>Kamper v. Hawkins, 3 Va. (1 Va. Cas.) 20, 71, 78 (1793).<\/span>\u2014is enforced.281<\/a><\/sup>See<\/em> Letter from Thomas Jefferson to Spencer Roane (Sept. 6, 1819), in <\/em>10 The Writings of Thomas Jefferson<\/span> 1816\u201326, at 140, 142 (Paul Leicester Ford ed., New York, G.P. Putnam’s Sons 1899) (\u201c[E]ach of the three departments has equally the right to decide for itself what is its duty under the constitution, without any regard to what the others may have decided for themselves under a similar question\u201d). <\/span> It does not follow from this delegation of power, however, that the judiciary \u201cdraws from the constitution greater powers than another\u201d and could therefore decisively invoke the Constitution\u2019s authority against another independent department of government.282<\/a><\/sup>James Madison, Removal Power of the President (June 17, 1789), in<\/em> 12 The Papers of Madison<\/span> 238 (Robert A. Rutland, William M.E. Rachal, Barbara D. Ripel & Fredrika J. Teute eds., 1973) (\u201cBut, I beg to know, upon what principle it can be contended, that any one department draws from the constitution greater powers than another, in marking out the limits of the powers of the several departments. The constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point\u201d). <\/span> As representatives of the people, each branch is responsible for upholding the Constitution.<\/p>\n

B. Judicial Review Before Marbury<\/em><\/p>\n

This understanding of the judicial role as another way for the people to decide the Constitution\u2019s meaning is important in understanding why the courts can\u2014and should\u2014play a role in interpreting the Constitution, but why the judiciary\u2019s 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\u2014and why early jurists were so hesitant to exercise the power of judicial review.283<\/a><\/sup>See<\/em> Kramer, Foreword<\/em>, supra<\/em> note 234, at 55\u201356. <\/span><\/p>\n

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 \u201cunconstitutional beyond dispute\u201d in the people\u2019s eyes.284<\/a><\/sup>Id.<\/em> at 56 (quoting Letter from James Iredell to Richard Dobbs Spaight (Aug. 26, 1787), in<\/em> 2 Life and Correspondence of Iredell<\/span>, supra<\/em> note 271, at 172, 175). <\/span> 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.<\/p>\n

1. Rutgers v. Waddington<\/em><\/p>\n

Some of the first state court experiments with judicial review \u201chad their genesis in the anti-loyalist legislation enacted by many states in the waning days of the Revolutionary War.\u201d285<\/a><\/sup>David A. Weinstein, Alexander Hamilton and the Birth Pangs of Judicial Review<\/em>, Judicial Notice<\/span> 9, Summer 2013, at 27. <\/span> 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\u2014the \u201cloyalist \u2018mecca\u2019 during [the] seven years of British occupation.\u201d286<\/a><\/sup>Id. <\/em><\/span><\/p>\n

With anti-British sentiments particularly high there, the New York state legislature enacted a list of acts directly targeting loyalists.287<\/a><\/sup>Id. <\/em><\/span> One statute, the Trespass Act, provided that any New York resident who \u201cby reason of the Invasion of the Enemy[] left his [or] her . . . Place[] of Abode\u201d would have an action sounding in trespass \u201cagainst any Person . . . who may have occupied, injured, or destroyed his [or] her . . . Estate . . . within the Power of the Enemy.\u201d288<\/a><\/sup>Id.<\/em> (quoting Session Laws, 1783, Chapter 31). <\/span> Rather pointedly, no defendant was allowed to plead \u201cin justification, any military Order or Command whatever, of the Enemy, for such Occupancy, Injury, Destruction or Receipt.\u201d289<\/a><\/sup>Id. <\/em> <\/span><\/p>\n

Not every patriot supported the Act. Patriots like John Jay and Alexander Hamilton worried that penalizing loyalists would hurt the new country\u2019s relationships with Europe by revealing that Americans were people \u201con whose engagement of course no dependence can be placed.\u201d290<\/a><\/sup>Id. <\/em>at 28 (quoting Letter from Phocion to the Considerate Citizens of New York on the Politics of the Day (1784), http:\/\/archive.org\/details\/cihm_57335 [https:\/\/perma.cc\/KGR8-5E77]).<\/span> Rutgers v. Waddington291<\/a><\/sup><\/em>There is no official report of the case. Documents from the case are collected in 1 The Law Practice of Alexander Hamilton<\/span> 282\u2013543 (Julius Goebel ed., 1964).<\/span> <\/em>gave these men the perfect vehicle to challenge the Trespass Act\u2014and for our purposes, a closer look at the relationship between the judicial branch and the legislature that later informed Alexander Hamilton\u2019s defense of judicial review during the ratification debates over the new Constitution.292<\/a><\/sup>See generally<\/em> The Federalist Nos.<\/span> 22, 78 (Alexander Hamilton). <\/span><\/p>\n

Rutgers<\/em> involved an elderly patriot widow, Elizabeth Rutgers, who sought to recover rent from two British merchants, Benjamin Waddington and Evelyn Pierrepont.293<\/a><\/sup>See<\/em> Weinstein, supra<\/em> note 285, at 28. <\/span> 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<\/a><\/sup>See id. <\/em><\/span> Not long afterwards, the British Army seized the property and the civilian Commissary General licensed the brewery to the merchants in 1778.295<\/a><\/sup>See id. <\/em><\/span> 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<\/a><\/sup>See id. <\/em><\/span> 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<\/a><\/sup>See id. <\/em><\/span><\/p>\n

Representing Waddington, Alexander Hamilton used the case to bring forward two constitutional challenges against the Trespass Act.298<\/a><\/sup>See <\/em>Treanor, supra <\/em>note 253, at 480. <\/span> First, he argued that the statute violated \u201cthe common law of . . . the law of nations\u201d which had been adopted by the New York Constitution.299<\/a><\/sup>Id.<\/em> at 480\u201381 (quoting Alexander Hamilton, Brief of Defendant, Rutgers v. Waddington, reprinted in<\/em> 1 The Law<\/span> Practice<\/span> of<\/span> Alexander Hamilton<\/span>, supra<\/em> note 291, at 368). <\/span> 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<\/a><\/sup>See id.<\/em> at 481\u201382. <\/span> 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: \u201cWhen two laws clash that which relates to the most important concerns ought to prevail.\u201d301<\/a><\/sup>Id.<\/em> at 482 (quoting Hamilton, supra <\/em>note 299, at 381). <\/span><\/p>\n

Ultimately, the Mayor\u2019s Court narrowly avoided Hamilton\u2019s second argument and instead decided the case on the basis of the law of nations.302<\/a><\/sup>See <\/em>Kramer, Foreword<\/em>, supra<\/em> note 234, at 56. <\/span> 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<\/a><\/sup>See <\/em>Treanor, supra<\/em> note 253, at 486. <\/span> He wrote:<\/p>\n

[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\u2019 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<\/a><\/sup>Id.<\/em> (quoting Rutgers v. Waddington, reprinted in<\/em> 1 The Law Practice of Alexander Hamilton<\/span>, supra<\/em> note 291, at 415) (emphasis omitted). Note that scholars have since contended that Chief Judge Duane\u2019s opinion is not a statement in support of pure legislative supremacy or a complete repudiation of judicial review, but rather \u201ca rejection of [judicial review] in a limited class of cases: judges cannot \u2018reject\u2019 a clearly expressed statute simply because it is \u2018unreasonable.\u2019\u201d Id.<\/em> <\/span><\/p>\n

Even then, the legislature decided to step in. Following the case, the state legislature released a resolution condemning the opinion as \u201cin its tendency subversive of all law and good order, and lead[ing] directly to anarchy and confusion.\u201d305<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 56 (quoting N.Y. Assemb. J., 8th Assemb., 1st meeting, at 33 (Oct. 4\u2013Nov. 29, 1784), reprinted<\/em> in<\/em> 1 The Law Practice of Alexander Hamilton<\/span>, supra<\/em> note 291, at 312).<\/span> Soon after, the New York Packet & the American Advertiser printed an open letter from nine citizens denouncing the court for exercising its \u201cpower to set aside an act of the state,\u201d and warned that \u201c[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.\u201d306<\/a><\/sup>Id.<\/em> at 56\u201357 (quoting Open Letter from N.Y. Packet & Am. Advert., Nov. 4, 1784, reprinted<\/em> in<\/em> 1 The Law Practice of Alexander Hamilton<\/span>, supra<\/em> note 291, at 313\u201314). <\/span> 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.<\/p>\n

2. Trevett v. Weeden<\/em><\/p>\n

New York was not unique though. Something like Rutgers<\/em> 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\u2019s debt left over from the Revolution.307<\/a><\/sup>Patrick T. Conley, The Story Behind Rhode Island\u2019s Most Important Legal Case: <\/em>Trevett v. Weeden in 1786<\/em>, The Online Review of Rhode Island History<\/span>, https:\/\/smallstatebighistory.com\/the-story-behind-rhode-islands-most-important-legal-case-trevett-v-weeden-in-1786\/ [https:\/\/perma.cc\/7MMM-VL9J].<\/span> And because the law was much opposed by creditors and merchants, the legislators, for good measure, passed another statute that imposed heavy fines \u201con those who did not accept the state\u2019s paper money as equivalent to gold or silver\u201d and specified that actions to challenge the fine should be tried without a jury and go without appeal.308<\/a><\/sup>Treanor, supra<\/em> note 253, at 476.<\/span><\/p>\n

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<\/a><\/sup>Conley, supra<\/em> note 307. <\/span> And much like Hamilton in Rutgers<\/em>, James Varnum, a former general in the Continental Army and member of Rhode Island\u2019s legislature, sprang to Weeden\u2019s defense and, in doing so, advanced various approaches to judicial review.310<\/a><\/sup>See id. <\/em><\/span> 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<\/a><\/sup>See<\/em> Treanor, supra<\/em> note 253, at 476\u201377.<\/span> He said,<\/p>\n

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<\/a><\/sup>Id.<\/em> at 476\u201377 (quoting Varnum<\/span>, supra<\/em> note 269, at 424).<\/span><\/p>\n

Therefore, \u201c[t]he Judiciary . . . cannot admit any act of the Legislature as law, which is against the constitution.\u201d313<\/a><\/sup>Id.<\/em> at 477 (quoting Varnum<\/span>, supra<\/em> note 269, at 423).<\/span><\/p>\n

Though Varnum had argued that the court could exercise judicial review because judges were \u201cordained by the people,\u201d the legislature, also ordained by the people, still retained the ability to question the court in the aftermath of the court\u2019s decision.314<\/a><\/sup>See<\/em> id. <\/em>at 477\u201378.<\/em><\/span> After the decision was announced, \u201cthe governor convened a special meeting of the legislature\u201d and \u201csummoned the court to explain its action.\u201d315<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 57. <\/span> The General Assembly then proceeded by entering its dissatisfaction with the court\u2019s decision into the record and even \u201centertained a motion to dismiss the entire bench.\u201d316<\/a><\/sup>Id.<\/em> at 58. <\/span> Eventually, the legislature replaced four out of the five judges on the bench during the next election.317<\/a><\/sup>See<\/em> Treanor, supra<\/em> note 253, at 478. <\/span> Like Rutgers<\/em>, once again here, the legislature stepped in as a coordinate branch to denounce the court\u2019s decision in Trevett<\/em>.<\/p>\n

3. The Respectful Remonstrance of 1788 & Kamper v. Hawkins<\/em><\/p>\n

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<\/a><\/sup>See <\/em>Kramer, Foreword<\/em>, supra<\/em> note 234, at 40. <\/span> The appellate judges challenged the statute as an unconstitutional diminution in their salaries.319<\/a><\/sup>Id. <\/em>at 40\u201341. <\/span><\/p>\n

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 \u201cThe Respectful Remonstrance of the Court of Appeals\u201d instead.320<\/a><\/sup>Id.<\/em> at 41. <\/span> 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<\/a><\/sup>Id. <\/em><\/span> Otherwise, the judges<\/p>\n

[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<\/a><\/sup>Id.<\/em> (quoting The Respectful Remonstrance of the Court of Appeals, 8 Va. (4 Call) 141 (1788)). <\/span><\/p>\n

The legislature responded to the Remonstrance by \u201csuspending the challenged act and passing a new court reorganization law designed to meet the judges\u2019 objections.\u201d323<\/a><\/sup>Id. <\/em><\/span><\/p>\n

Desperate to staff and run the new district court more efficiently, however, the legislature changed the law once more.324<\/a><\/sup>See id.<\/em> at 79\u201380. <\/span> In 1789, the legislature gave district court judges the power to issue injunctions\u2014a power that, at that point, had only been exercised by the high court of chancery.325<\/a><\/sup>Id. <\/em>at 79\u201380.<\/span> The validity of the law came before the General Court in 1793 in Kamper v. Hawkins<\/em>,326<\/a><\/sup>3 Va. (1 Va. Cas.) 20 (1793).<\/span> where this time, having had enough of the legislature\u2019s missteps, the judges exercised the power of judicial review, as opposed to a \u201cstraight political appeal[] as it had done five years earlier.\u201d327<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 80. <\/span> The unanimous court invalidated the statute.328<\/a><\/sup>Id. <\/em><\/span><\/p>\n

As noted by many other scholars, Kamper<\/em> is significant for providing one of the most detailed discussions on the bounds of judicial review up to that point.329<\/a><\/sup>See id.<\/em> at 79\u201382; see also<\/em> Treanor, supra<\/em> note 253, at 515\u201317. <\/span> In context, though, Kamper<\/em> 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\u2019s ability to restructure the state judiciary. Rather than outright invalidating the legislature\u2019s actions and attempting to settle the debate the way modern courts do, the judges in the Remonstrance and on the Kamper <\/em>Court demonstrated the power of judicial intervention and open dialogue with the legislature when they suspect a piece of legislation is unconstitutional.<\/p>\n

4. Hayburn\u2019s Case<\/em><\/p>\n

Up to now, we have discussed judicial review of state statutes. Hayburn\u2019s Case330<\/a><\/sup><\/em>2 U.S. (2 Dall.) 409 (1792).<\/span><\/em> is one of the first cases in which the Supreme Court exercised judicial review against a federal statute.331<\/a><\/sup>See<\/em> Treanor, supra<\/em> note 253, at 533.<\/span> In 1792, Congress enacted the Invalid Pensions Act, which required pension applicants to first appear before their respective circuit court.332<\/a><\/sup>Id.<\/em> at 533\u201334. <\/span> 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<\/a><\/sup>Id. <\/em>at 534. <\/em><\/span><\/p>\n

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, \u201cneither 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.\u201d334<\/a><\/sup>Hayburn\u2019s Case<\/em>, 2 U.S. (2 Dall.) at 410. <\/span> In other words, much like the court in the Remonstrance, the Circuit Court for New York started its challenge with a purely political appeal\u2014this time to the President.<\/p>\n

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\u2019s pension application.335<\/a><\/sup>Treanor, supra <\/em>note 253, at 534.<\/span> Their decision almost immediately sparked debate on the House Floor.336<\/a><\/sup>Id. <\/em><\/span> Some members even raised the possibility of impeachment,337<\/a><\/sup>Id.<\/em> <\/span> though others engaged in more mild criticism, hinting that the decision was \u201cindiscreet and erroneous.\u201d338<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 77 (quoting Letter from Fisher Ames to Thomas Dwight (Apr. 25, 1792), reprinted in<\/em> 2 Works of Fisher Ames<\/span> 942, 942 (W.B. Allen ed., 1983)). <\/span> Much like with Rutgers<\/em>, the press also joined the conversation.339<\/a><\/sup>See<\/em> Treanor, supra<\/em> note 253, at 534. <\/span> The General Advertiser<\/em> reported, \u201c[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.\u201d340<\/a><\/sup>Id.<\/em> (quoting Gen. Advertiser<\/span>, Apr. 13, 1792, reprinted in<\/em> 6 The Documentary History of the Supreme Court of the United States 48 (<\/span>Maeva Marcus ed., 1990)). <\/span><\/p>\n

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<\/a><\/sup>Id.<\/em> at 535. <\/span> Largely echoing what the Circuit Court for New York had written to Washington earlier, the judges wrote that \u201c[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<\/em> constitutional authority.\u201d342<\/a><\/sup>Id.<\/em> (emphasis added) (quoting Letter from James Wilson, John Blair, and Richard Peters to George Washington (Apr. 18, 1792), reprinted in<\/em> 6 The Documentary History of the Supreme Court of the United States<\/span>, supra<\/em> note 340, at 53\u201354). <\/span><\/p>\n

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<\/a><\/sup>Id.<\/em> <\/span> Like both Circuit Courts before them, the North Carolina Circuit Court suggested the statute was unconstitutional because it gave circuit courts a \u201c[p]ower not in its nature Judicial.\u201d344<\/a><\/sup>Id.<\/em> at 536 (alteration in original) (quoting Letter from James Iredell & John Sitgreaves to George Washington (June 8, 1792), reprinted in<\/em> 6 The Documentary History of the Supreme Court of the United States<\/span>, supra<\/em> note 340, at 286). <\/span> In so arguing, the Circuit Court emphasized the independence of each branch: \u201cThat the Legislative, Executive, and Judicial Departments are each formed in a separate and independent manner . . . .\u201d345<\/a><\/sup>Id.<\/em> (omission in original) (quoting Letter from James Iredell & John Sitgreaves to George Washington (June 8, 1792), in<\/em> 6 The Documentary History of the Supreme Court of the United States<\/span>, supra <\/em>note 340, at 284). <\/span><\/p>\n

After all this, Hayburn eventually took the case to the Supreme Court.346<\/a><\/sup>Id. <\/em><\/span> 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<\/a><\/sup>Id. <\/em><\/span> The last Justice, Justice Thomas Johnson, ultimately sided with the others after refusing to consider pension petitions while riding circuit soon thereafter, stating that \u201cthis Court cannot constitutionally take Cognixance\u201d of the petitions.348<\/a><\/sup>Id.<\/em> (quoting Extract from the Minutes of the United States Circuit Court for the District of South Carolina (Oct. 26, 1792), reprinted in<\/em> 6 The Documentary History of the Supreme Court of the United States<\/span>, supra<\/em> note 340, at 70). <\/span> Instead of formally deciding to strike down the statute once and for all in unanimity, however, \u201cthe Court decided to delay to see if Congress would respond to the constitutional concerns that had been raised and repeal the Invalid Pensions Act.\u201d349<\/a><\/sup>Id.<\/em><\/span> Taking notice of the Justices\u2019 rather public positions, in 1793, Congress repealed the 1792 Act, thereby mooting Hayburn\u2019s Case<\/em>.350<\/a><\/sup>See id.<\/em> at 536\u201337. <\/span> 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\u2014just like many cases of earlier state courts who used, or verged on using, the power of judicial review.<\/p>\n

More broadly though, Rutgers<\/em>, Trevett<\/em>, Kamper<\/em>, and Hayburn\u2019s Case<\/em> reveal that judicial review had been established long before Chief Justice Marshall joined the Supreme Court and penned his famous line in Marbury<\/em>. Yet, the form that judicial review took is unimaginable today: judges invalidated statutes by engaging in political discourse with the other branches of government\u2014not avoiding it. And this version of judicial review was so well accepted that by the time Marbury <\/em>was decided and Marshall \u201cchose 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.\u201d351<\/a><\/sup>Fisher, supra<\/em> note 278, at 67.<\/span> \u201cMarshall understood that constitutional questions needed to be shared with Congress and the President.\u201d352<\/a><\/sup>Id.<\/em><\/span><\/p>\n

C. Constitutional Interpretation by Other Branches<\/em><\/p>\n

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\u2014or at the very least, that the bounds of judicial review were still hotly debated then, unlike today.<\/p>\n

1. The Kentucky and Virginia Resolutions<\/em><\/p>\n

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<\/a><\/sup>Douglas C. Dow, Virginia and Kentucky Resolutions of 1798<\/em>, Free Speech Center<\/span> (July 2, 2024), https:\/\/firstamendment.mtsu.edu\/article\/virginia-and-kentucky-resolutions-of-1798\/ [https:\/\/perma.cc\/Q5Q3-HTJR].<\/span> The Alien Acts gave the President the power to detain and deport foreigners who were considered dangerous to the country.354<\/a><\/sup>Id. <\/em><\/span> The Sedition Act made it a crime to publish false, scandalous, or malicious things about the U.S. government.355<\/a><\/sup>See<\/em> id.<\/em> <\/span><\/p>\n

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<\/a><\/sup>See id.<\/em>; see also <\/em>Kramer, Foreword<\/em>, supra<\/em> note 234, at 96. <\/span> 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\u2019 complaints that the new Constitution would weaken state power; how Pennsylvania protested the 1791 excise tax; and how Virginia opposed the Jay Treaty.357<\/a><\/sup>Kramer, Foreword<\/em>, supra<\/em> note 234, at 96.<\/span> Yet, by 1798, something had changed.358<\/a><\/sup>See id. <\/em><\/span> Ten states, all dominated by Federalists, released their own resolutions censuring Kentucky and Virginia.359<\/a><\/sup>Id.<\/em> at 96\u201397. <\/span> Some, like Rhode Island, went as far as to argue that the Constitution \u201cvests 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\u201d360<\/a><\/sup>Id.<\/em> at 97 (quoting 4 Debates on the Adoption of the Federal Constitution<\/span> 533 (Jonathan Elliot ed., 1876)). <\/span>\u2014an early seed of judicial supremacy that Madison vehemently rejected in his Report of 1800 for the legislature of Virginia.361<\/a><\/sup>See<\/em> id.<\/em> (citing James Madison,<\/span> Report on the Alien and Sedition Acts<\/span> (Jan. 7, 1800), reprinted in<\/em> James Madison: Writings<\/span> 608, 613 (Jack N. Rakove ed., 1999)).<\/span><\/p>\n

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<\/a><\/sup>Cf. <\/em>Matthew P. Cassady, \u201cOur Liberty Most Dear\u201d: The Political Reforms of John C. Calhoun<\/em>, 7 Constructing the Past<\/span> 18, 22\u201323 (2006) (describing how John C. Calhoun\u2019s defense of concurrent majoritarianism employed the ideals of the Kentucky and Virginia Resolutions).<\/span> Less talked about, though, is how much more modest the Kentucky and Virginia Resolutions actually were. Instead of claiming the states\u2019 outright ability to invalidate federal legislation, the Kentucky and Virginia legislatures \u201cresolved merely to transmit their objections to the states\u2019 representatives in Congress and to other states, so that all could jointly urge federal lawmakers to repeal the offending legislation\u201d after expressing their disagreement through their resolutions.363<\/a><\/sup>Kramer, Foreword<\/em>, supra <\/em>note 234, at 96. <\/span> 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 \u201cthat the judicial authority is to be regarded as the sole expositor of the constitution[,]\u201d364<\/a><\/sup>Id.<\/em> at 97 (quoting James Madison,<\/span> Report on the Alien and Sedition Acts<\/span> (Jan. 7, <\/em>1800), reprinted in<\/em> James Madison: Writings<\/span>, supra <\/em>note 361, at 613). <\/span> as some states like Rhode Island had argued in their own resolutions, and instead aimed to initiate a conversation between Congress\u2014in its representative capacity of the states\u2019 interests\u2014and the Court about what the Constitution demands in this particular scenario.<\/p>\n

2. Dred Scott v. Sandford, Lincoln, and the Reconstruction Congress<\/em><\/p>\n

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<\/em>.365<\/a><\/sup>60 U.S. 393 (1857); see also <\/em>Brad Snyder, Opinion, The Supreme Court Has Too Much Power and Liberals Are to Blame<\/em>, Politico<\/span> (July 27, 2022), https:\/\/www.politico.com\/news\/magazine\/2022\/07\/27\/supreme-court-power-liberals-democrats-00048155 [https:\/\/perma.cc\/T5LX-LRSK].<\/span> 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<\/a><\/sup>Dred Scott<\/em>, 60 U.S. at 427. <\/span> Rather than stop there, though, Chief Justice Taney then held that the Missouri Compromise of 1820 was unconstitutional\u2014marking the second time in American history that the Court struck down a federal law.367<\/a><\/sup>Id.<\/em> at 489\u201390; Sara Rimer, Dred Scott<\/em>, Equal Justice Initiative (<\/span>Mar. 6, 2024) https:\/\/eji.org\/news\/dred-scott\/ [https:\/\/perma.cc\/CJ5C-MCST] (\u201cIt was only the second time the Court had overturned an act of Congress\u201d).<\/span> To this day, Dred Scott<\/em> remains \u201ca significant blot on [the Court\u2019s] record, frequently referred to as a basis for doubting the Court.\u201d368<\/a><\/sup>Barry Friedman, The History of the Countermajoritarian Difficulty, Part II: Reconstruction\u2019s Political Court<\/em>, 91 Geo. L.J.<\/span> 1, 20 (2002).<\/span> Yet, many today also accept without question Chief Justice Taney\u2019s underlying premise that the Court can determine constitutional meaning for everyone.<\/p>\n

When Dred Scott <\/em>was decided, however, it was widely criticized.369<\/a><\/sup>See<\/em> Friedman, supra <\/em>note 254, at 351. <\/span> Many at the time viewed \u201cjudicial decisions . . . as nothing more than an imposition of the Justices\u2019 own views.\u201d370<\/a><\/sup>Id. <\/em><\/span> Only a year after Dred<\/em> Scott<\/em> was decided, for instance, Stephen Douglas in the 1858 Illinois Senate race defended Dred Scott<\/em> by arguing that:<\/p>\n

[i]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<\/a><\/sup>Edwin Meese III, The Law of the Constitution<\/em>, 61 Tul. L. Rev.<\/span> 979, 984 (1987) (quoting 3 The Collected Works of Abraham Lincoln<\/span> 142\u201343 (R. Basler ed., 1953)). <\/span><\/p>\n

His opponent in the race, Lincoln, disagreed.372<\/a><\/sup>See id.<\/em> at 984.<\/span> According to Lincoln, the Court\u2019s decision was \u201cdecided in favor of Dred Scott\u2019s master and against Dred Scott and his family\u201d and therefore binding on the parties to the case.373<\/a><\/sup>Id.<\/em> at 985 (quoting 3 The Collected Works of Abraham Lincoln<\/span>, supra<\/em> note 371, at 516).<\/span> But he:<\/p>\n

oppose[d] [Dred Scott<\/em>] . . . 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<\/a><\/sup>Id.<\/em> (second alteration and omission in original) (quoting 3 The Collected Works of Abraham Lincoln<\/span>, supra<\/em> note 371, at 255). <\/span><\/p>\n

\u201c\u2018[T]he people will have ceased to be their own rulers\u2019 if \u2018the 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.\u201d375<\/a><\/sup>Tushnet<\/span>, supra<\/em> note 196, at 9 (quoting First Inaugural Address (Mar. 4, 1861), in<\/em> 6 A Compilation of the Messages and Papers of the Presidents<\/span>, 1789\u20131907<\/span> 9 (James D. Richardson ed., 1908)). <\/span> Years later, Lincoln tested that theory when he, as President, signed one of the most celebrated documents in American history: the Emancipation Proclamation.376<\/a><\/sup>Proclamation No. 95 (Jan. 1, 1863).<\/span><\/p>\n

Moreover, the Civil War and Reconstruction Congresses ratified Lincoln\u2019s views by proceeding to overrule Dred Scott<\/em> themselves in their own way.377<\/a><\/sup>See <\/em>Bowie & Renan, supra<\/em> note 43. <\/span> In 1862, Congress abolished slavery in the District of Columbia and the federal territories.378<\/a><\/sup>See <\/em>Paul Finkelman, The Revolutionary Summer of 1862: How Congress Abolished Slavery and Created a Modern America<\/em>, Prologue Magazine<\/span> (2017), https:\/\/www.archives.gov\/publications\/prologue\/2017\/winter\/summer-of-1862 [https:\/\/perma.cc\/6YRB-D3RX].<\/span> In 1866, Congress recognized Black people as citizens of the United States.379<\/a><\/sup>See <\/em>Julian Mark, A Law That Helped End Slavery Is Now a Weapon to End Affirmative Action<\/em>, The Washington Post<\/span> (Nov. 6, 2023), https:\/\/www.washingtonpost.com\/business\/2023\/11\/06\/civil-rights-act-1866-dei-affirmative-action\/ [https:\/\/perma.cc\/KA9U-ZCVN].<\/span> 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<\/a><\/sup>See<\/em> Tribe<\/span>, supra <\/em>note 106, at 921 n.5.<\/span> And in 1875, Congress guaranteed Black people equal treatment in public transportation and accommodations.381<\/a><\/sup>See<\/em> Melvin I. Urofsky, Civil Rights Act of 1875<\/em>, Encyclop\u00e6dia Britannica<\/span> (Feb 23, 2024), https:\/\/www.britannica.com\/topic\/Civil-Rights-Act-United-States-1875 [https:\/\/perma.cc\/43P7-NZ55].<\/span> 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.<\/p>\n

IV. Imagining a Conversation Between Congress and the Court<\/span><\/p>\n

More than a hundred years after President Lincoln, President Ronald Reagan\u2019s Attorney General, Edwin Meese III, attempted to make the same argument: \u201c[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.\u201d382<\/a><\/sup>Meese, supra<\/em> note 371, at 983 (omission in original) (quoting 3 Charles Warren, The Supreme Court in United States History<\/span> 470\u201371 (1923)). <\/span> To think otherwise, Meese said, echoing Lincoln, would be \u201cto 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.\u201d383<\/a><\/sup>Id.<\/em> at 989. <\/span> 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<\/a><\/sup>See id.<\/em> at 985. <\/span><\/p>\n

Yet, somewhere between the Civil War and the swearing in of Chief Justice Rehnquist and Justice Scalia, Lincoln\u2019s message to the country got lost. The argument that the Constitution itself is above the decisions of the Court provoked intense criticism.385<\/a><\/sup>See<\/em> Sanford Levinson, Could Meese be Right This Time?<\/em>, 61 Tul. L. Rev.<\/span> 1071, 1074\u201375 (1987).<\/span> Eugene C. Thomas, then-president of the American Bar Association, asserted in response that \u201cSupreme Court decisions are indeed the law of the land and that \u2018public officials and private citizens alike are not free simply to disregard\u2019 their status as law.\u201d386<\/a><\/sup>Id.<\/em> at 1074 (quoting Stuart Taylor Jr., Liberties Union Denounces Meese<\/em>, N.Y. Times<\/span>, Oct. 24, 1986, at A17). <\/span> Ira Glasser, then-executive director of the American Civil Liberties Union, said Meese\u2019s speech was an \u201cinvitation to lawlessness\u201d and \u201ca call to defiance and to undermining the legitimacy of abiding by decisions that you disagree with.\u201d387<\/a><\/sup>Id.<\/em> (quoting Ronald J. Ostrow, Meese\u2019s View that Court Doesn\u2019t Make Laws Scored<\/em>, L.A. Times<\/span>, Oct. 24, 1986, \u00a71, at 27).<\/span> And Anthony Lewis, writing for the New York Times, \u201caccused the Attorney General of \u2018making a calculated assault on the idea of law in this country: on the role of judges as the balance wheel in the American system.\u2019\u201d388<\/a><\/sup>Id. <\/em>(quoting Anthony Lewis, Opinion, Abroad at Home: Law or Power<\/em>, N.Y. Times<\/span>, Oct. 27, 1986, at A23). <\/span> The criticism was so intense that Meese had to back down from his original position and publicly concede that the Court\u2019s decisions \u201care the law of the land\u201d and \u201cdo indeed have general applicability.\u201d389<\/a><\/sup>Edwin Meese III, The Tulane Speech: What I Meant<\/em>, The Washington Post<\/span>, Nov. 13, 1986, at A21. <\/span> No public servant has since dared to stray far from the principle of judicial supremacy390<\/a><\/sup>Kramer, supra<\/em> note 234, at 6. <\/span>\u2014so 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.<\/p>\n

What happened? Some blame the Warren Court.391<\/a><\/sup>See<\/em> Snyder, supra<\/em> note 365. <\/span> 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<\/a><\/sup>See<\/em> id. <\/em><\/span> In attempting to enforce Brown<\/em>, though, the Warren Court put its decision on par with the Constitution itself, citing Marbury<\/em> for a proposition that it had never been used for before: that the Court was \u201csupreme in the exposition of the law of the Constitution.\u201d393<\/a><\/sup>Cooper v. <\/em>Aaron, 358 U.S. 1, 18 (1958). Like Lincoln suggested with respect to Dred Scott<\/em>, Cooper<\/em> should have also been treated as an enforcement of a specific judicial ruling. <\/span> Subsequent Courts only doubled down on this egregious misreading of Marbury<\/em>.394<\/a><\/sup>See <\/em>Snyder, supra<\/em> note 365. <\/span> While ordering Tennessee to reapportion its state legislative districts, for example, the Court reiterated its new position as the \u201cultimate interpreter of the Constitution.\u201d395<\/a><\/sup>Baker v. <\/em>Carr, 369 U.S. 186, 211 (1962). <\/span> In opinion after opinion, the Court and the lawyers that bought into this new legal culture slowly built up \u201cthe cult of the court.\u201d396<\/a><\/sup>Ezra Klein & Larry Kramer, Transcript: Ezra Klein Interviews Larry Kramer<\/em>, N.Y. Times<\/span> (July 5, 2022), https:\/\/www.nytimes.com\/2022\/07\/05\/podcasts\/transcript-ezra-klein-interviews-larry-kramer.html [https:\/\/perma.cc\/74CY-RW6E].<\/span><\/p>\n

Regardless of what his political motives may have been,397<\/a><\/sup>For a general criticism of whether Meese\u2019s interpretation of the Constitution was improperly influenced by his politics, see<\/em> Lynette Clemetson, Meese\u2019s Influence Looms in Today\u2019s Judicial Wars<\/em>, N.Y. Times<\/span> (Aug. 17, 2005), https:\/\/www.nytimes.com\/2005\/08\/17\/politics\/meeses-influence-looms-in-todays-judicial-wars.html [https:\/\/perma.cc\/9FGD-DGY4] (\u201cLaurence H. Tribe, a liberal law professor at Harvard, said: \u2018Meese was successful in making it look like he and his disciples were carrying out the intentions of the great founders, where the liberals were making it up as they went along. It was a convenient dichotomy, very misleading, with a powerful public relations effect\u2019\u201d).<\/span> though, Meese\u2014and really Lincoln\u2014was correct. As Parts I and II delved into, because constitutional construction is the responsibility of all three branches of government\u2014a responsibility bestowed upon them by the people\u2014the judiciary cannot be the sole expositor of the Constitution\u2019s meaning. Instead, we have seen that Congress, too, can be a legitimate constitutional interpreter\u2014especially under the Fourteenth Amendment, which expressly grants Congress the power to \u201cenforce\u201d the guarantees of the Amendment.398<\/a><\/sup>U.S. Const.<\/span> amend. XIV, \u00a7 5.<\/span> This Part aims to complete the picture of what an open dialogue between Congress and the Court on the Fourteenth Amendment\u2019s mandates means in practice.<\/p>\n

A. The Practical Import of the Court\u2019s Ability to \u201cInvalidate\u201d Laws<\/em><\/p>\n

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<\/em>.399<\/a><\/sup>See<\/em> discussion supra<\/em> Part III. <\/span> But that begs the question, in a system without judicial supremacy, what does it mean for a court to exercise judicial review?<\/p>\n

As Professor Michael Klarman explained, \u201cit is one thing for the Court to assert the power of judicial review, as in Marbury<\/em>. It is another thing entirely for the Court to exercise that power and to have its decisions obeyed.\u201d400<\/a><\/sup>Klarman, supra<\/em> note 238, at 1123. <\/span> 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<\/em>.401<\/a><\/sup>See id.<\/em> at 1123\u201324. <\/span> The \u201cgenius\u201d of Marbury<\/em> was that Marshall knew the Court was too weak to exercise any sort of judicial supremacy at the time.402<\/a><\/sup>Id.<\/em> at 1123. <\/span> If the Court back then had the political clout it does today, and \u201chad Marshall thought that Jefferson and Madison would have complied with a Court command that they deliver Marbury\u2019s commission, he would not have engaged in the legal gymnastics necessary to manufacture a conflict between the statute and the Constitution.\u201d403<\/a><\/sup>Id.<\/em> at 1123\u201324. <\/span> Instead, Marshall sidestepped the entire issue by asserting that the Court lacked jurisdiction\u2014in other words, \u201che issued no order that Secretary of State Madison could have defied.\u201d404<\/a><\/sup>Id. <\/em>at 1123. <\/span> Central to the Marbury<\/em> 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<\/em> do no more than that.405<\/a><\/sup>See <\/em>The Federalist No.<\/span> 78 (Alexander Hamilton) (\u201cThe judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments\u201d).<\/span> At least, that is certainly what President Andrew Jackson understood when he later famously said \u201c[w]ell: John Marshall has made his decision: now let him enforce it!\u201d406<\/a><\/sup>Edwin A. Miles, After John Marshall\u2019s Decision: Worcester v. Georgia and the Nullification Crisis<\/em>, 39 J. on S. Hist.<\/span> 519, 519 (1973). <\/span><\/p>\n

When the Court decides a case, it is binding on the parties directly involved in the case\u2014that is a baseline assumption that everyone, including Lincoln, Meese, and even Chief Justice Marshall, share.407<\/a><\/sup>See<\/em> Meese, supra<\/em> note 371, at 985; Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399\u2013400 (1821) (\u201cIt is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated\u201d). Interestingly, Justice Neil Gorsuch also expressed this view recently when explaining why stare decisis cannot always control. See<\/em> Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2279 (2024) (\u201c[A] past decision may bind the parties to a dispute, but it provides this Court no authority in future cases to depart from what the Constitution or laws of the United States ordain. Instead, the Constitution promises, the American people are sovereign and they alone may, through democratically responsive processes, amend our foundational charter or revise federal legislation. Unelected judges enjoy no such power\u201d).<\/span> Beyond that baseline though, any exposition of constitutional meaning should be treated more like an advisory opinion408<\/a><\/sup>For a deeper explanation of why the Supreme Court does not currently issue advisory opinions, see<\/em> Alicia Bannon, Judicial Advisory Opinions, Explained<\/em>, Brennan Center for Justice<\/span> (Nov. 17, 2023), https:\/\/www.brennancenter.org\/our-work\/research-reports\/judicial-advisory-opinions-explained [https:\/\/perma.cc\/R8YD-CFCT].<\/span> in which the justices have expressed their views on the political question before them\u2014views 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\u2019s decision409<\/a><\/sup>See<\/em> Klein & Kramer, supra<\/em> note 396. <\/span>\u2014like it did in the ADA when it disagreed with the Court\u2019s reasoning in Cleburne<\/em> or as in the RFRA when it disagreed with the Court\u2019s decision in Employment Division<\/em>.410<\/a><\/sup>See <\/em>discussion supra<\/em> Introduction and Section II.D. One could view Congress\u2019 subsequent acquiescence to the Court\u2019s decision as Congress folding and acknowledging it could not disagree with the Court. But there is good reason to believe that the legislative acquiescence was the result of a new burgeoning legal culture that repeatedly insisted that Congress had little power to disagree with the Court\u2014an idea that was never fully accepted as the norm before the late 20th century. See<\/em> discussion supra<\/em> Part II. Though she was arguing against popular constitutionalism, Professor Suzanna Sherry recognized the impact that our legal culture can have on the way judges and politicians approach their roles, the media and the public talk about the law, and law students begin to think about the law and go on to practice it. See generally<\/em> Sherry, supra<\/em> note 253. Quite literally, for better or for worse, the way we talk about the law in the legal world \u201cinfect[s] politicians, judges, and the American public.\u201d Id.<\/em> at 463. Limiting that conversation to just judicial supremacy has stifled thinking and practice around what is the proper congressional role in our constitutional structure. <\/span> 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\u2019s will.411<\/a><\/sup>See<\/em> discussion supra <\/em>Part III.B.<\/span> The conversation, then, transforms from less like a parent telling her child to follow an order \u201cbecause I said so!\u201d (judicial supremacy), and more like two adults resolving a disagreement through conversation and compromise\u2014with neither of them setting the rules for how and when the other can speak (popular constitutionalism as departmentalism).<\/p>\n

B. The Problem of the Two-Way Ratchet<\/em><\/p>\n

Now, some scholars have gone as far as to argue that the courts should not be involved in any sort of constitutional conversation\u2014full stop.412<\/a><\/sup>See, e.g.<\/em>, Tushnet<\/span>, supra<\/em> note 196, at 154\u201376; Nikolas Bowie & Daphna Renan, The Separation-of-Powers Counterrevolution<\/em>, 131 Yale L.J.<\/span> 2020 (2022). <\/span> 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<\/a><\/sup>Tushnet<\/span>, supra<\/em> note 196, at 154\u201376.<\/span> To him, it is possible to have a constitution that is never enforced by the courts because \u201c[e]liminating judicial review would not eliminate our ability to appeal to those principles in constitutional discourse outside the courts.\u201d414<\/a><\/sup>Id.<\/em> at 166. <\/span> But such a constitutional structure would run straight into the problem of the two-way ratchet, first identified by Justice Harlan in Morgan<\/em>: without a proper check on Congress\u2019 power, there is a legitimate concern that congressional interpretation of the Fourteenth Amendment might lead to the contraction\u2014not the expansion\u2014of civil rights and civil liberties under the Constitution.415<\/a><\/sup>See<\/em> Katzenbach v. Morgan, 384 U.S. 641, 668 (1966) (Harlan, J., dissenting).<\/span><\/p>\n

The solution to that problem, however, should not be to remove a player from the game of constitutional interpretation\u2014whether 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<\/a><\/sup>See <\/em>The Federalist No.<\/span> 51 (James Madison). <\/span> The greatest security against governmental encroachment on civil rights and civil liberties is \u201cgiving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the other\u201d417<\/a><\/sup>Id. <\/em><\/span>\u2014in 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<\/a><\/sup>See, e.g.<\/em>, Brown v. Bd. of Educ., 347 U.S. 483, 494\u201395 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896)). <\/span> The people can vote and petition their representatives to enact a law or promulgate a regulation that disagrees with the Court\u2019s opinion. A constitutional conversation that stays true to the Constitution, in other words, requires at least two participants.<\/p>\n

C. The Problem of Interpretive Anarchy and Legal Settlement<\/em><\/p>\n

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 \u201c[s]tability and coordination.\u201d419<\/a><\/sup>Alexander & Schauer, supra <\/em>note 41, at 1376. Professors Alexander and Schauer ultimately argue that the Supreme Court should be the sole interpreter of the Constitution. However, they acknowledge that many of the arguments they make can justify Congress being the sole interpreter of the Constitution as well. Id.<\/em> at 1377\u201378 n.80 (\u201cIf this argument succeeds at all, it does so only for a single national legislature, because multiple legislatures could not serve the coordination function. In the context of a single legislature like Congress, the argument is not inconsistent with ours insofar as it admits the need for a single authoritative interpreter to which others must defer. The question, then, is whether that function is best served by a court or by a legislature. On this issue, our preference for a court over a legislature, and indeed over the executive as well, is explained partly by the fact that constitutions are designed to guard against the excesses of the majoritarian forces that influence legislatures and executives more than they influence courts. Further, there is little reason to believe that a legislature or an executive is best situated to determine the contours of the constraints on its own power. Finally, the authoritative settlement function is better served when there is authoritative settlement over time as well as across institutions. The existence of a regime of precedential constraint for courts but for neither legislatures nor the executive, an institutional difference predating judicial review and a deeply entrenched part of the self-understanding of different institutional roles, offers an additional argument for preferring courts to either legislatures or the executive for achieving the goals of authoritative settlement\u201d). <\/span> The theory goes that, because \u201can important\u2014perhaps the<\/em> important\u2014function of law is its ability to settle authoritatively what is to be done,\u201d having one interpreter will clarify and settle people\u2019s obligations under the law.420<\/a><\/sup>Id.<\/em> at 1377 (emphasis in original). <\/span> That idea holds, even if it means telling \u201cactors to accept, for purposes of their own actions, constitutional interpretations they believe mistaken\u201d for:<\/p>\n

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\u2014warts and all\u2014as a constraint on their political actions and moral judgments.421<\/a><\/sup>Id.<\/em> at 1379\u201380. <\/span><\/p>\n

Yet, today, the Supreme Court\u2019s decisions have fallen short of such optimal clarity. The Roberts Court especially, \u201cdoes not appear to consider itself particularly bound by stare decisis.\u201d422<\/a><\/sup>Khiara M. Bridges, The Supreme Court, 2021 Term \u2014 Foreword: Race in the Roberts Court<\/em>, 136 Harv. L. Rev.<\/span> 23, 53 (2022).<\/span> In Dobbs v. Jackson Women\u2019s Health Organization<\/em>,423<\/a><\/sup>597 U.S. 215 (2022). <\/span> the Court \u201cdiscard[ed] a precedent that had existed for nearly half a century\u201d as it upheld Mississippi\u2019s fifteen-week abortion ban.424<\/a><\/sup>Bridges, supra<\/em> note 422, at 53. <\/span> In Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard College<\/em>,425<\/a><\/sup>600 U.S. 181 (2023). <\/span> the Court effectively ended affirmative action in college programs and implicitly overruled precedent like Grutter v. Bollinger<\/em>.426<\/a><\/sup>539 U.S. 306 (2003); see also<\/em> Bill Watson, Did the Court in <\/em>SFFA Overrule <\/em>Grutter?<\/em>, 99 Notre Dame L. Rev. Reflection<\/span> 113, 122\u201330 (2023). <\/span> In Loper Bright Enterprises v. Raimondo<\/em>, the Court overruled the 40-year practice of according administrative agencies deference in their interpretations of what the law demands.427<\/a><\/sup>144 S. Ct. 2244 (2024).<\/span> 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\u2019s chopping block. And, even if one \u201crefute[s] the notion that the Roberts Court has been any more inclined than prior Courts to overrule precedent,\u201d428<\/a><\/sup>Note, The Thrust and Parry of Stare Decisis in the Roberts Court<\/em>, 137 Harv. L. Rev.<\/span> 684, 684 (2023) (citing Frederick Schauer, Has Precedent Ever Really Mattered in the Supreme Court?<\/em>, 24 Ga. St. U. L. Rev.<\/span> 381, 401 (2007); Jonathan H. Adler, The Stare Decisis Court<\/em>, Reason: Volokh Conspiracy<\/span> (July 8, 2018), https:\/\/reason.com\/volokh\/2018\/07\/08\/the-staredecisis-court [https:\/\/perma.cc\/357T-DH69]). <\/span> the point still stands: the Court\u2019s ability to overrule itself is precisely why its decisions cannot be treated as equivalent to the Constitution itself.429<\/a><\/sup>See<\/em> Meese, supra<\/em> note 371, at 989 (arguing that conflation of the Constitution with constitutional law leaves no room for the Court to overrule its own previous decisions). <\/span> Even the Supreme Court gets the Constitution wrong sometimes.430<\/a><\/sup>To be clear, adherence to precedent is not necessarily indicative of judicial soundness. The ability of the Court to overrule its own erroneous decisions can be a good thing\u2014that is, of course, the lesson learned from the Court in Brown<\/em> overruling the prior Court in Plessy<\/em>. Rather, I argue that the Court\u2019s ability to break from stare decisis signifies why the Court\u2019s decisions cannot be treated as if they are on par with the Constitution itself. At any given moment, the Court may be following a misguided interpretation of the Constitution that has not been overruled yet. <\/span><\/p>\n

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 \u201cfight it out\u201d in the halls of Congress and the Court not only produces more legitimate constitutional determinations, but it also serves a truth-seeking function.431<\/a><\/sup>See, e.g.<\/em>, Ori Aronson, Getting It Right: Institutional Design and Epistemic Competence in Law and the Limits of Reason<\/em>, 2 Jerusalem Rev. Legal Stud.<\/span> 32, 33\u201334 (2010); Ori Aronson, Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts<\/em>, 43 U. Mich. J. L. Reform <\/span>971, 976\u201377 (2010); cf.<\/em> Irene M. Ten Cate, Speech, Truth, and Freedom: An Examination of John Stuart Mill\u2019s and Justice Oliver Wendel Holmes\u2019s Free Speech Defenses<\/em>, 22 Yale J.L. & Humans.<\/span> 35, 77 (2010). <\/span> Much like John Stuart Mill\u2019s \u201cmarketplace of ideas,\u201d when \u201ceveryone 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.\u201d432<\/a><\/sup>Jill Gordon, John Stuart Mill and the \u201cMarketplace of Ideas\u201d<\/em>, 23 Soc. Theory and Prac.<\/span> 235, 236 (1997). <\/span> 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 \u201cdeal with erroneous or dangerous ideas is to refute them, not to suppress them.\u201d433<\/a><\/sup>Id.<\/em> (quoting Christian Bay, Access to Political Knowledge as a Human Right<\/em>, 7 The Hum. Context <\/span>388, 391 (1975)). <\/span> Only speaking the truth can combat error and create the stability we seek in the realm of constitutional interpretation.<\/p>\n

V. Conclusion<\/span><\/p>\n

Our Constitution begins with \u201cWe the People of the United States\u201d434<\/a><\/sup>U.S. Const.<\/span> Preamble<\/span>.<\/span> and ends, some 7,000 words later, with the Twenty-Seventh Amendment.435<\/a><\/sup>This sentence is a modified and updated version of a line from Edwin Meese\u2019s speech. See <\/em>Meese, supra<\/em> note 371, at 981 (\u201cIt begins \u2018We the People of the United States, in Order to form a more perfect Union. . .\u2019 and ends up, some 6,000 words later, with the twenty-sixth amendment\u201d). <\/span> 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 \u201cappropriate\u201d legislation to \u201cenforce\u201d its mandate that:<\/p>\n

[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<\/a><\/sup>U.S. Const.<\/span> amend. XIV, \u00a7 1, 5.<\/span><\/p>\n

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\u2019s charter?<\/p>\n

Whether they realized it or not, that\u2019s 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.<\/p>\n

\n

[*] <\/a>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\u2014and in the process, me. Finally, thank you to Mia Berman, Marissa Medici, and the editors of the Harvard Journal on Legislation<\/em> for believing in this piece and working to make it better than I could have done alone. All views and mistakes are my own.<\/p>\n\n\n

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