Antidiscrimination Law
Queer Brinksmanship: Citizenship and the Solomon Wars
112 Yale L.J. 673 (2002) In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters from accessing campuses and directory information about students. It was the opening salvo in what has become a voluble expressive battle between the military and law schools. This fall, under cover of war, the Department of Defense (DoD) attempted to bring a decisive end to the conflict. Helping themselves to millions of dollars of ammunition from the coffers of their fellow agencies--with ambiguous authority at best--the military successfully forced Judge Advocate General (JAG) recruiters onto campuses around the country, upending carefully wrought compromises in favor of a show of force. This Comment takes this queer brinksmanship as its subject. There are numerous ways to criticize both the Solomon Amendment and the recent DoD enforcement campaign. It appears, for example, that the DoD is operating in violation of its own regulations, and relying upon statutory interpretations that raise serious constitutional questions under the Spending Clause. There are also potential First Amendment problems with the Solomon Amendment, particularly because of the special zone of speech protection that universities enjoy. From a pragmatic point of view, Solomon and the recent escalation look like colossal cognitive error. By refusing to hire openly gay, lesbian, and bisexual individuals, and by adopting tactics that generate protests and ethical dilemmas for potential recruits, the military sharply undermines its own recruiting efforts. This Comment contends, however, that we cannot measure Solomon's success or failure against its pragmatic impact on military recruiting, because Solomon is not and has never been about effective military recruiting. Rather, Solomon and its recent enforcement are maneuvers in an expressive battle, fought over the role that homosexuals play in a community, the purpose of the modern university, and the meaning of good citizenship. But if Solomon is a symbolic conflict, who is winning? This Comment suggests a surprising possibility: The military may be serving the cause of homosexuals by calling attention to its discriminatory policies in their most transparently homophobic context (the JAG Corps). The military also may have done universities a favor by returning them to their heritage of dissent: Forced to relinquish the accommodations upon which they relied to manage the conflict, universities and law schools now have little choice but simply to confront it. Finally, I suggest that those of us dedicated to nondiscrimination principles that include sexual orientation should welcome this opportunity for engagement--but also think seriously about what it would mean to win, and what we are willing to risk to do so.
Section 1983, Statutes, and Sovereign Immunity
112 Yale L.J. 353 (2002) This Comment argues that a significant, but unnoticed, way around state sovereign immunity has become available under current law. Although sovereign immunity now generally prohibits actions against states for violations of the Americans with Disabilities Act (ADA), a plaintiff should be able to use 42 U.S.C. § 1983 to seek damages from state officials for ADA violations. Using the leading case on the topic, Alsbrook v. City of Maumelle, the Comment will show that when the current Supreme Court closed one door through its federalism cases, it opened another through § 1983. It might appear that the Supreme Court's recent sovereign immunity jurisprudence has all but eliminated Congress's power to subject states to private damage actions for violations of federal statutes. In the line of cases beginning with Seminole Tribe v. Florida, and including Alden v. Maine, the Court has consistently (if controversially) found that Congress has no power under Article I of the Constitution to subject states to private damage actions, in either federal or state courts, for violating federal statutes. Although Congress retains power to subject states to damage suits by individuals through its power to enforce the Fourteenth Amendment, that power has been reined in substantially in recent years by the line of cases beginning with City of Boerne v. Flores and including Board of Trustees of the University of Alabama v. Garrett. The result is a number of important federal statutes, including the ADA (the subject of Garrett), in which congressional schemes for private damage suits have been held invalid on Eleventh Amendment grounds. These statutes are theoretically still legitimate legislation under the Commerce Clause, and states are still obliged to obey them--and yet an injured party is unable to seek monetary relief if they are violated. Countless commentators have noticed, and lamented, this breach of the rule-of-law principle. Nonetheless, damage suits for violations of federal law that are in essence suits against states happen all the time. They are suits under 42 U.S.C. § 1983. Section 1983 has been recognized since 1961 as providing a way to sue state officials for damages stemming from violations of federal law. The § 1983 damages suit proceeds under the legal fiction that one is suing a state official in his individual capacity for a violation of § 1983. Section 1983, in turn, creates no substantive rights; rather, it provides a remedy against officials who act under color of state law to violate a right guaranteed by federal law. The paradigm case for a § 1983 violation has been a violation of the federal Constitution, and many commentators refer to § 1983 cases as "constitutional torts." Ever since Maine v. Thiboutot, however, § 1983 has been read also to permit suits against state officials acting in their individual capacities for violations of federal statutes. One can sue a state official for violating a federal statute, just as one can sue the official for violating a duty under the Constitution. The key point, for Eleventh Amendment purposes, is the legal fiction that § 1983 suits against individual officers are not suits against a state. They thus do not, in theory, raise Eleventh Amendment issues at all. The state, although it serves as the "deep pocket," is liable only indirectly, usually through an indemnification contract or policy in which the state implicitly or explicitly agrees to reimburse monetary judgments against its officers. In this way, the courts have permitted what amounts to a modified regime of tort liability for state governments that violate federal law. If all of this is true--if the ADA still applies to the states, and if one can plead statutory violations against state officials in their individual capacities for violations of federal statutes--then why don't plaintiffs' lawyers simply sue individual state officials under § 1983 for violating their obligations under federal law? Instead of bringing a suit under the ADA directly against a state, why not sue a state official under § 1983 for his violation of the ADA? Such a method would limit the power of Seminole Tribe and render cases like Garrett almost irrelevant in practice.
Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination
111 Yale L.J. 2289 (2002)
Simple Fairness: Ending Discrimination in Health Insurance Coverage of Addiction Treatment
111 Yale L.J. 2321 (2002)
The Political Economy of School Choice
111 Yale L.J. 2043 (2002) This Article examines the political economy of school choice and focuses on the role of suburbanites. This group has re- ceived little attention in the commentary but is probably the most important and powerful stakeholder in choice debates. Suburbanites generally do not support school choice pol- icies either public or private. They are largely satisfied with the schools in their neighborhoods and want to protect the physical and financial independence of those schools, as well as suburban property values, which are tied to the perceived quality of local schools. School choice threatens the independence of suburban schools by creating the pos- sibility that outsiders, especially urban students, will enter suburban schools and that local funds will exit local schools. When suburbanites face threats to their schools, they fight back, and they usually win. As this Article documents, sub- urbanites succeeded in insulating their schools from prior education reforms, including efforts to integrate schools and alter school funding regimes. A similar pattern is emerging in school choice plans, almost all of which work to protect the physical and financial autonomy of suburban schools and res- idents. If this pattern continues, school choice plans will be geographically constrained, will tend to be intradistrict, and will exist primarily in urban districts. These constraints will limit the ability of school choice to stimulate student academic improvement, racial and socioeconomic integration, and pro- ductive competition among public schools. Simply put, limited school choice plans will have limited impact, so that school choice will be neither a panacea, as its proponents argue, nor a serious threat to traditional public schools, as its opponents contend. To achieve the full theoretical benefits of school choice, we suggest that the choices offered to students must be broadened, especially in ways that will pro- vide greater opportunities for socioeconomic integration. In the final Part of the Article we consider ways to do so, including through increased access to government-funded, though not necessarily government-operated, preschools.
Reconceptualizing VAWA's "Animus" for Rape in States' Emerging Post-VAWA Civil Rights Legislation
111 Yale L.J. 1417 (2002)
To Promote the General Welfare: The Republican Imperative To Enhance Citizenship Welfare Rights
111 Yale L.J. 1457 (2002)
The Anti-Antidiscrimination Agenda
111 Yale L.J. 1141 (2002) For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case may be the proverbial thirteenth chime of the clock, not only wrong in itself, but calling into question what came before. But I have avoided all discussion of that case here, forgoing any advantage such a discussion might have given to the argument. Bush v. Gore is a singular point in a number of respects, and its shadow has already dissipated to a considerable extent. The aim of this Essay was instead to look at a set of "ordinary" cases that, when viewed in their own doctrinal categories, look perfectly plausible, but when viewed as a whole, juxtaposed across doctrines, begin to look suspicious. If this suspicion proves well-founded, it will mean that the current Court's constitutional case law has to be understood less in terms of its ostensible doctrinal reasoning, and more in terms of an underlying agenda, founded on a deeply held but as yet poorly theorized sense that antidiscrimination law in this country has taken a very wrong turn. If all this is true, the right response might not be to jettison the Court's case law, but to jettison the whole enterprise of taking constitutional doctrine seriously. After all, constitutional law is always driven by one agenda or another. Perhaps the sun set long ago on law's empire; perhaps now is a propitious time finally to put an end to the nonsense about the foundations that "We the People" laid down a century or two ago. Perhaps instead the only kind of question really worth asking is whether the agenda pursued by a particular Court is, for example, legitimated by recent popular elections, or whether it makes the Constitution the best it can be.
Covering
111 Yale L.J. 769 (2002) In this article, Professor Yoshino considers how the gay civil rights movement might enright the American civil rights paradigm, which he takes to be predicated on the paradigm classifications of race and sex. He posits that gays may be able to contribute a more robust theory of the relationship between assimilation and discrimination, a theory that takes assimilation to be an effect of discrimination as well as an evasion from it. Yoshino believes that gays may be more attuned to the discriminatory aspects of assimilation because they are capable of assimilating in more ways than racial minorities or women. Either in fact or in the imagination of others, gays can assimilate in three ways - conversion (in which the underlying identity is changed), passing (in which the underlying identity is retained but masked), and covering (in which the underlying identity is retained and disclosed, but made easy for others to disattend). Yoshino first elaborates his taxonomy of assimilationist demands in the context of orientation. He demonstrates that as discriminatory animus against gays has become weaker, so too have the demands for assimilation, which have shifted in emphasis from conversion through passing toward covering. At the same time, however, Yoshino questions whether these shifts in emphasis are substantive or merely rhetorical, positing that covering demands that target traits or behaviors constitutive of identity are tantamount to conversion demands. Deploying a postmodern theory of status performativity, Yoshino suggests that a commitment to protect certain statuses might also require the protection of traits or behaviors that might partially constiute those statuses. Yoshino then applies his theory to the contexts of race and sex. He demonstrates that antidiscrimination discourse often distinguishes between racial minorities and women on the one hand and gays on the other, in part because of the relative inability of racial minorities and women to assimilate into mainstream society. Yet Yoshino maintains that racial minorities and women are not as immune to assimilationist demands as their general inability to convert or pass may suggest, as such groups are routinely asked to cover. Indeed, Yoshino argues that enforced covering is the contemporary form of discrimination to which racial minorities and women remain the most vulnerable. Yoshino thus contends that resistance to the covering demand in the legal and political spheres is an issue around which racial minorities, women, and gays might make common cause.
Abolition Without Deliverance: The Law of Connecticut Slavery 1784-1848
111 Yale L.J. 183 (2001) According to American public memory, slavery in the United States was peculiar to the South. Unless explicitly reminded of the North's history of slavery, most Americans associate the North with abolitionists rather than slaveholders. Alongside this public memory is the work of professional historians that recognizes that slavery existed in the North during the colonial era but asserts that it was abolished during the late eighteenth century. According to such scholarship, as the Revolutionary War brought ideas of natural rights to the forefront of the American consciousness and as economic realities made Northern slavery increasingly unprofitable, states north of Maryland eliminated slavery through a series of legal measures. Some scholars who advance this narrative portray the abolition measures adopted by most Northern states as immediate and comprehensive, as though these measures effectuated the near-instantaneous eradication of slavery in each state that adopted them. In fact, though the number of slaves in the North declined after the Revolutionary War, slavery continued to exist there well into the nineteenth century. Between 1777 and 1804, all of the states north of Maryland did take steps that would eventually doom slavery within their borders. But only in Massachusetts, Vermont, and New Hampshire were slaves emancipated relatively swiftly, and even in these states abolition measures were ambiguous and their implementation inconsistent. In Pennsylvania, New Jersey, New York, Connecticut, and Rhode Island, state legislatures adopted gradual abolition legislation, which dismantled slavery over a period of half a century. Even histories of the North that distinguish gradual from immediate abolition tend to depict the former as an event rather than as a process. Some accounts elide the decades between the enactment of gradual abolition laws and slavery's actual extinction, as though slavery during this period were unworthy of remark because it was in decline. Other works minimize or foreshorten the history of Northern slavery after the adoption of gradual abolition through imprecise language and sweeping generalities. Still other works ignore the mechanics of gradual abolition laws and their effect on slaves entirely. Historians' cursory treatment of this transitional era insinuates that gradual abolition laws produced slavery's straightforward and timely demise and promotes the image of Northern slavery as fleeting and anomalous. Using Connecticut as a case study, this Note begins where the traditional narrative concludes. Unlike the standard histories of African Americans and of slavery in Connecticut, this Note probes the law of slavery between 1784, when the state adopted gradual abolition, and 1848, when the state's last slaves became free. In particular, this Note challenges the standard account of Connecticut abolition in three respects. First, it presents evidence that Connecticut's 1784 Gradual Abolition Act did not remove slavery from the state in a prompt and orderly fashion. In Connecticut--as in all of those states north of Maryland and south of Massachusetts that enacted gradual abolition laws--slavery's termination was protracted and idiosyncratic. Second, the Note demonstrates that Connecticut's Gradual Abolition Act, while central to the decline of slavery in the state, was only one of several legal and extralegal developments that together caused slavery to disintegrate. Third, this Note considers the experience of Connecticut slaves and their children in the wake of gradual abolition; it examines slavery's stubborn hold on people even as it slowly decayed. Part I examines Connecticut's Gradual Abolition Act of 1784 and reveals that the law freed no slaves. It did promise eventual freedom to the future-born children of slaves, but, under the law, even these beneficiaries remained in servitude until the age of twenty-five. The law reflected the legislature's intent to end the institution of slavery in the state in a way that respected property rights and preserved social order. Part II challenges the notion that the 1784 law alone extinguished slavery in Connecticut. The population of slaves did decrease after 1784, but only because the Gradual Abolition Act was combined with other legal developments, both legislative and judicial, that so cut off the supply of new slaves as to ensure slavery's atrophy. Despite these legal restrictions, individuals continued to introduce new slaves into Connecticut through a variety of means, both lawful and unlawful. Furthermore, neither the 1784 law, nor any other law, emancipated living slaves. These slaves' sole hope for freedom was the voluntary acts of slaveholders. To the extent that statutory law addressed such manumissions, it discouraged rather than promoted it. Part III explores the effect of the Gradual Abolition Act on Connecticut slaves. Even after the enactment of gradual abolition, slaves remained subject to the wills of their masters and constrained by a slave code, a legal regime that controlled and managed slaves. In some senses, the 1784 law made slave life more uncertain because the law created incentives for slaveholders to export their bondspeople from Connecticut. Part IV shows that even the future-born children of slaves, to whom the Gradual Abolition Act promised freedom, did not experience unmitigated salvation. For twenty-five years, such individuals remained "in servitude," bound to their mothers' masters in a state of near-slavery, the contours of which were unsettled. Part V concludes with a summary of the Note's principal arguments and seeks to orient its analysis of abolition in Connecticut within the context of scholarship about Northern abolition more generally. The Gradual Abolition Act of 1784 did not neatly lift slavery from the social landscape of Connecticut. Nor did the Act initiate a linear process of abolition. If one keeps an eye on the law and an eye on those whom its vagaries affected, one begins to discover a turbulent story. Certainly, when measured against the alternative of perpetual slavery, the 1784 statute was a monumental achievement. However, through the eyes of both slaves and free black people, and of those who existed--as this Note will show--in between, the decades following the 1784 Act were bittersweet at best. The slaves who lived during these generations lived in a world of social limbo; for them, "abolition" ushered in an era of confusion and ambiguity rather than unqualified deliverance.
"A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective
110 Yale L.J. 1045 (2001)
Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel
110 Yale L.J. 441 (2000) Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, the Court concluded that Section 5 did not give Congress the power to abrogate state Eleventh Amendment immunity for suits under the Age Discrimination in Employment Act of 1967, and in United States v. Morrison, the Court held that Congress was without power under either the Commerce Clause or Section 5 to enact a provision of the Violence Against Women Act of 1994 (VAWA) creating a federal civil remedy for victims of gender-motivated violence. Both Kimel and Morrison are written in forceful and broad strokes that threaten large stretches of congressional authority under Section 5. Yet the Court's Section 5 holdings were rendered without dissent. Although in Kimel there were four Justices prepared to disagree strenuously with the decision's liberal interpretation of Eleventh Amendment immunity, and although in Morrison there were four Justices prepared to disagree strenuously with the decision's restrictive interpretation of federal Commerce Clause power, not a single Justice in either case was ready to vote to sustain congressional power under Section 5, even as Justice Breyer identified key deficiencies in Morrison's justification for its Section 5 holding. This silence is remarkable, yet explicable. Since the New Deal, the Commerce Clause has shaped core understandings of the contours of national power. In the early 1960s, the Supreme Court took the consequential step of upholding the public accommodations provisions of the Civil Rights Act of 1964 on Commerce Clause grounds alone, despite the fact that Congress had asserted authority to enact the legislation under both the Commerce Clause and Section 5 of the Fourteenth Amendment. We have ever since grown habituated to the use of Commerce Clause power to sustain federal antidiscrimination law, never definitively resolving the shape and reach of Section 5 authority. What might be called the "jurisdictional" compromise of the 1960s was forged at a time when the Commerce Clause seemed to offer boundless support for Congress's authority to enact antidiscrimination laws. But this no longer appears to be the case. Given the Court's current determination to impose limits on Congress's authority to enact antidiscrimination legislation under the Commerce Clause, the time has come to examine thoroughly, at long last, a question that the Court has now rendered inescapable: the extent of Congress's power to enact antidiscrimination legislation under Section 5 of the Fourteenth Amendment. A growing number of the Court's decisions now claim authoritatively to resolve this question within a framework that seeks to protect what the Court regards as "vital principles necessary to maintain separation of powers and the federal balance." These decisions are enormously consequential. This past Term represents the first time since Reconstruction that the Court has declared that Congress lacked power to enact legislation prohibiting discrimination. Yet the impact of last Term's decisions is still not clear. The decisions are rife with ambiguity. After Kimel, for example, it is uncertain whether and to what extent Congress can exercise its power under Section 5 to redress forms of discrimination that differ from those that courts prohibit in cases arising under Section 1 of the Fourteenth Amendment. It is equally unclear after Morrison whether and to what extent antidiscrimination legislation enacted under Section 5 can regulate the conduct of private actors. Depending upon how Kimel and Morrison are interpreted in subsequent decisions, the Court's Section 5 jurisprudence could develop in quite different directions. Any hope of engaging the Court with regard to the premises of this emerging Section 5 jurisprudence depends upon wrestling with the Court's reasoning now, while this new body of doctrine is still taking shape in ongoing litigation. We thus begin this Essay by analyzing Section 5 legislation within the framework advanced by the Court in its recent decisions. We argue that neither separation-of-powers nor federalism values require the kind of stringent judicial supervision of Section 5 antidiscrimination legislation that some interpretations of the Court's recent decisions might be read to authorize. After analyzing Congress's Section 5 power within the terms of the Court's recent decisions, we conclude the Essay by stepping outside the framework of these decisions. We question the court-centered model of constitutional interpretation that these decisions assume, examining the relationship between Court and Congress that actually shaped the meaning of the Equal Protection Clause in recent decades. We argue that this history justifies a continuing role for democratic vindication of equality values. The Essay is divided into four parts. In the first, we briefly set the stage by describing the interlocking Supreme Court decisions that have brought Congress's power to enact antidiscrimination legislation under Section 5 to the top of the judicial agenda, while simultaneously rendering doubtful the nature and extent of Congress's authority to enforce the Equal Protection Clause. In Part II, we examine the separation-of-powers constraints that the Court has imposed on Section 5 power in the Kimel decision. Section 5 gives Congress the "power to enforce, by appropriate legislation, the provisions of this article," and the constitutional scope of Section 5 legislation therefore doubles back on the question of how "the provisions of this article" are to be read. The Court apparently regards this peculiar doubled structure as especially threatening to its authority to interpret the Constitution, and it conceptualizes this question as an issue of separation of powers. Kimel uses a test of "congruence and proportionality" to ensure that congressional Section 5 legislation does not encroach on the Court's prerogative to declare the meaning of the Fourteenth Amendment. The test is intended to distinguish statutes that attempt to remedy violations of Section 1 of the Amendment from those that attempt to redefine the constitutional protections of that Section. While some lower courts have begun to read Kimel as requiring that legislation enforcing the Equal Protection Clause conform to the terms of the Court's cases judicially enforcing the Clause, we argue that, properly read, Kimel allows for institutional variance in legislative and judicial enforcement of the Clause. This approach is supported not only by the Court's reasoning in Kimel, but also by the Court's reasoning in cases interpreting the equal protection guarantee of Section 1. If Kimel constrains Section 5 power to ensure that Congress's efforts to enforce the Equal Protection Clause do not encroach on the prerogatives of the Court, Morrison constrains Section 5 power to ensure that Congress's efforts to enforce the Equal Protection Clause do not encroach on the prerogatives of the states. In Part III we analyze how Morrison applies the Court's "resurgent federalism" to antidiscrimination legislation enacted under Section 5. Since the days of Reconstruction, the Court has worried that Section 5 might "authorize Congress to create a code of municipal law for the regulation of private rights" that will displace "the domain of State legislation." Morrison provocatively appeals directly to these Reconstruction-era perspectives. We subject Morrison to critical scrutiny, examining its arguments and reasoning, and measuring its vision of federalism against the historical development of the federal civil rights tradition in the twentieth century. Although Morrison might be interpreted as announcing a per se rule forbidding the use of Section 5 power to regulate private parties, we argue that the decision is better read as requiring a case-by-case determination of whether Section 5 legislation is congruent and proportional to the constitutional violation it seeks to remedy. We conclude Part III by exploring whether federalism values require restrictions on Section 5 antidiscrimination legislation that is properly remedial within the meaning of Kimel. However interpreted, the Court's decisions in Kimel and Morrison impose new and substantial restrictions on Congress's power to enact antidiscrimination laws under Section 5. This is because both decisions conceive of the legitimacy of Section 5 power as ancillary to judicial authority to enforce Section 1 of the Fourteenth Amendment. In Part IV we suggest that this framework of analysis misconceives how the constitutional meaning of the Equal Protection Clause is established. We argue that the framework is not required by either federalism or separation of powers, and that it is inconsistent with the development of equal protection jurisprudence in the decades after Brown v. Board of Education. Drawing on the history recounted in Part III, we illustrate how the Court struggled with the distinctive dilemmas of interpreting the Equal Protection Clause during the founding decades of our modern antidiscrimination tradition and responded by forging a relationship with Congress that cannot be conceptualized within a framework that would require Section 5 legislation to be narrowly tailored to judicial enforcement of Section 1. In the aftermath of Brown, the Court invited Congress's participation in vindicating equality norms, both because Congress could secure popular acceptance of the Court's decisions interpreting the Equal Protection Clause and because the representative branches of government were an important resource for the Court as it struggled to learn from and speak to the American people about the meaning of the Fourteenth Amendment's guarantee of "equal protection of the laws." In this era, the Court established a relationship with Congress that was fluid and dynamic, and that could not be adequately comprehended by mechanical criteria like "congruence and proportionality." This institutional relationship enabled the Court to interpret the Equal Protection Clause in a manner that was attentive to evolving and contested social norms. The framework of the Court's recent Section 5 decisions represents a fundamental break with the forms of interaction that the Warren and Burger Courts cultivated with Congress in this formative period of the modern antidiscrimination tradition. At stake in the framework of analysis advanced by Kimel and Morrison, therefore, is the survival of the very institutional ecology in which legal and social understandings of equality have provoked, inspired, and shaped each other over the last four decades. Yet at no point in last Term's cases did the Court identify or weigh the potential costs of disrupting this ecology, which its newfound interest in limiting the ways that Congress may enforce the Equal Protection Clause threatens to do. Restricting the participation of the representative branches in enforcing the Equal Protection Clause does not necessarily enhance the authority of the Court or the Constitution and, we argue, may ultimately diminish the authority of both. This, then, is the largest set of concerns that animates the writing of this Essay and that leads us to engage in a serious and sustained way the Court's decisions in Kimel and Morrison. In order to evaluate the reach, rationale, and likely consequences of the restrictions these cases impose on Section 5 power, we begin our story at a provisional beginning, in an effort to understand how the question of Congress's Section 5 authority, so long shrouded in mystery, has now become a focal point of Supreme Court attention.