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Safeguarding Fundamental Rights: Judicial Incursion into Legislative Authority


Alexander Tsesis


Loyola University Chicago School of Law

February 22, 2008


Abstract:     
This article claims that congressional authority over civil rights is linked to an American rights-based tradition. It traces that tradition from the Revolution, through Reconstruction, and onto today.

Contrary to scholars like Rogers Smith and Larry Yackle, I claim that a fairly stable national ethos, which can be traced to the founding documents, has played a vital role in centuries of civil rights development. The principle of liberal equality, lying at the core of the Fourteenth Amendment, is essential to developing national civil rights policies.


Part II of the article discusses the concepts of liberty and equality during the revolutionary period. Emphasis is given to the early understanding of the national statements of purpose in the Declaration of Independence and the Preamble to the Constitution. That part also discusses the constitutional compromises that failed to achieve the stated ends of national government. Part III turns to several abolitionist views on the existence of a national obligation to protect rights. Those constitutional theories became influential during debates on the ratification of the Reconstruction Amendments, which granted Congress the power to pass laws securing rights intrinsic to national citizenship against arbitrary abuses. Debates on the Thirteenth and Fourteenth Amendments, the subjects of Part IV, made the principle of equal rights enforceable through federal statutes. As Part V recounts, the Court variously restrained the reach of new congressional powers. The article concludes, in part VI, with a critique of recent Supreme Court decisions, such as United States v. Morrison and Board of Trustees v. Garrett, which have further limited congressional civil rights authority.

Number of Pages in PDF File: 52

Keywords: legal history, history, legal theory, Constitution, constitional doctrine, constitutional law, civil rights, legislative authority, congressional authority, neo abolitionism, Reconstruction Amendments, Thirteenth Amendment, Fourteenth Amendment, individual rights, fundamental rights, rights

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Date posted: December 17, 2007 ; Last revised: June 24, 2009

Suggested Citation

Tsesis, Alexander, Safeguarding Fundamental Rights: Judicial Incursion into Legislative Authority (February 22, 2008). Available at SSRN: http://ssrn.com/abstract=1074103 or http://dx.doi.org/10.2139/ssrn.1074103

Contact Information

Alexander Tsesis (Contact Author)
Loyola University Chicago School of Law ( email )
25 E. Pearson
Chicago, IL 60611
United States
312-915-7929 (Phone)

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