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Florida Law Review

Abstract

Before City of Boerne v. Flores, the Supreme Court construed Section Five of the Fourteenth Amendment as an expansive grant of authority, affording Congress broad power to enact legislation enforcing its own interpretations of the Constitution. Under this regime, Congress enacted landmark civil rights statutes such as the Americans with Disabilities Act and the Violence Against Women Act. In 1997, however, City of Boerne v. Flores sharply curtailed Congress’s power under Section Five—announcing (for the first time) that legislation contravening the Court’s prior pronouncements on the meaning of the Fourteenth Amendment impermissibly intruded on the Supreme Court’s role as the ultimate expositor of the constitutional text. Such legislation, the Court declared, violated the separation of powers.

This restriction on Congress’s Section Five power creates a puzzle. When the Court has yet to opine on an open question of Fourteenth Amendment law, may Congress rely on Section Five at all? To the extent scholars have considered the question, they have simply assumed that Boerne—and its understanding of the separation of powers—would disable Congress from relying on its enforcement power. This Article takes a different tack, arguing that Section Five includes the power for Congress to venture a guess at the answer to an open question of constitutional law. To establish the legitimacy of such Section Five “guesses,” I argue by analogy to another area of separation of powers jurisprudence that expressly endorses guesswork as consistent with the separation of powers: the Erie doctrine.

This Article’s account of congressional guesswork has direct implications for our modern civil rights regime. This Article supplies a novel explanation for the constitutionality of landmark pieces of legislation—such as the Family and Medical Leave Act—that cannot be defended as merely “enforcing” existing equal protection doctrine. It also supplies an explanation for the constitutionality of two proposed bills passed by the House in 2021—the Equality Act and the Women’s Health Protection Act—both of which are best understood to embody congressional guesses about the correct answer to open questions of constitutional law.

What’s more, this Article argues that Section Five guesses, although not binding on the Court, have contributed to the Court’s development of Fourteenth Amendment doctrine. Guesswork as a legislative practice enables Congress to enter into a dialogue with the Supreme Court about the meaning of the Constitution. Indeed, the history of Section Five legislation suggests that when Congress has relied on Section Five to articulate a guess about constitutional meaning, the Court has often listened. This Article concludes that the practice of congressional guesswork under Section Five revives the prospect of a genuine (if narrowed) legislative constitutionalism—a possibility generally thought to be entirely foreclosed by Boerne.

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