Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights

Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights

Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights

Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights

Synopsis

"Zietlow performs a valuable service in probing the belief that courts are, by historical tradition, and institutional design, better protectors of minority rights than a legislative body such as Congress." - Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School

In Enforcing Equality, Rebecca E. Zietlow assesses Congress's historical role in interpreting the Constitution and protecting the individual rights of citizens, provocatively challenging conventional wisdom that courts, not legislatures, are best suited for this role. Specifically focusing on what she calls "rights of belonging"- a set of positive entitlements that are necessary to ensure inclusion, participation, and equal membership in diverse communities- Zietlow examines three historical eras: Reconstruction, the New Deal era, and Civil Rights era of the 1960s. She reveals that in these key periods when rights of belonging were contested and defined, Congress has played the role of protector of rights at least as often as the Supreme Court has adopted this role.Enforcing Equalityalso engages in a sophisticated theoretical analysis of Congress as a protector of rights, comparing the institutional strengths and weaknesses of Congress and the courts as protectors of the rights of belonging. With the recent new appointments to the Supreme Court and Congressional elections in November 2006, this timely book argues that individual rights are best enforced by the political process because they express the values of our national community, and as such, litigation is no substitute for collective political action.

Excerpt

Every year, thousands of students in constitutional law classes throughout the country learn about the special role that the federal courts have in our constitutional system—the role of protecting discrete and insular minorities. With its roots in Justice Stone's famous footnote four in United States v. Carolene Products, the “representation reinforcement” theory of judicial review posits that federal courts are best suited for protecting individual rights in general, and the rights of minorities in particular, because they are insulated from political pressures experienced by the majoritarian political branches. No less than one of the Founders of our Constitution, Alexander Hamilton, first made this argument, claiming that “the independence of the judges is equally requisite to guard the Constitution and the rights of the individual from the effects of those ill humors which [are] the arts of designing men.” To legal scholars educated in these classes and inspired by the Warren Court's ruling in Brown v. Board of Education, it is axiomatic that the primary protectors of individual rights within our constitutional system are the federal courts. However, this theory does not accurately reflect the relationship among Congress, the federal courts, and individual rights throughout the history of our country. Repeatedly, and during key periods of our history, Congress, representing the majority of the people in our nation, has acted not to infringe upon but to protect equality norms. In this book I describe that history, question the primacy of federal courts as protectors of individual rights, and present an alternative picture—that of Congress, the majoritarian branch, protecting equality norms.

In this book I revisit one of the oldest and most important controversies in constitutional law: how to reconcile equality norms with democratic rule. Most constitutional scholars believe that equality norms need protection from majority rule and that only the insulated federal courts can provide that protection. To the contrary, I argue that . . .

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