There has been continual conflict between the legislative and judicial branches regarding the authority of Congress to enact remedies for the violation of constitutional rights. Armed with the assumption that it has unlimited authority to define remedies, Congress has sought to enact legislation to alter constitutional remedies imposed by the courts. At the same time, the Supreme Court has narrowly interpreted the scope of Congress' so-called “remedial” or enforcement power under Section 5 of the Fourteenth Amendment. The legal question explored in this article is how to balance this conflict of power and resolve the respective roles of each branch in dictating remedial rights for constitutional violations. This article concludes that Congress is limited under Section 5 to enacting prophylactic and proportional remedies that are adequate substitutes for judicial remedies that give meaning and life to judicially-defined constitutional guarantees. In fleshing out this thesis, the article derives a framework from the modern proliferation of Supreme Court cases related to this question of congressional determination of remedial rights. The framework is more descriptive than normative, as it attempts to review the recent cases and the glimmers of suggestions provided by the Court in order to discern a more workable approach to reconciling the judicial and legislative remedial powers. Critical to this conclusion is an appropriate jurisprudential understanding of remedies as part of the unified right, rather than a secondary, tangential mechanism. Thus, the article begins by exploring the nature of remedies and criticizing their conceptualization under essentialist theories as something other than the operative primary right.
University of California, Davis, Law Review
Tracy A. Thomas. Congress' Section 5 Power and Remedial Rights, 67 University of California, Davis, Law Review 673 (2001).