The Constitutional Politics of Interpreting Section 5 of the Fourteenth Amendment

This essay analyzes the Rehnquist Court’s Section 5 cases by first, in Section I, establishing how the Supreme Court has historically assumed the task of interpreting Congress’ power to act under the Fourteenth Amendment. Two periods, Reconstruction and then the mid- 1960s, are examined because they present contrasting views about the scope of what the Fourteenth Amendment and its enforcement section means. Section II then surveys Section 5 cases from the Rehnquist Court in order to illustrate how its jurisprudence mirrors the antifederalist rhetoric established in the post-reconstruction era while, not surprisingly, departing from the principles set forth in the Warren Court’s egalitarian revolution. Section III analyzes the Rehnquist Court’s Section 5 jurisprudence while predicting how the Court is likely to approach deciding Hibbs v. Department of Human Resources, 22 a Ninth Circuit case the Court agreed to decide in the 2002-03 Term. It also concludes that the Court, in Hibbs, is likely to apply an interpretivist construction of Section 5 power that will reaffirm the antifederalist doctrine established in the Reconstruction period and, as a result, reassert judicial supremacy, while missing another opportunity to align constitutional law doctrine with the framer’s more salutary design in creating the Fourteenth Amendment