Remembering Congress and the Separation-of-Powers: The Case Against ‘Judicial Updating’ of Title VII of the Civil Rights Act of 1964

Abstract

The notion that was once the founding principle of our country’s constitutional scheme — each branch of our government ought to be and function separately and exclusively — has today, remained lost in the past. Indeed, these jurisprudential veins run deep. At common law, the prevailing notion held that “nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state.” The founding generation profoundly understood the necessity of the republican form of government and that its absence, our government would cease. Have these principles faded along with the ink used in their establishment? Our Founders expected the judicial department to act impartially and to behold the rules dictated under the Constitution. Good policy may indeed be necessary to preserve the rights of a few and where good law is required such should originate from the lawmakers. In our system, the role of a judge is to merely “say what the law is.” Accordingly, in employing an originalist reading of both the Constitution and of Title VII of the Civil Rights Act of 1964, this note argues that Title VII, in its current form, fails to protect such individuals from discrimination and employment termination based on their choice of gender. More simply, I contend that it is not for the court, as defined by Article III, to add or amend the text of Title VII. For such an amendment is wholly within the province of the legislative branch.