83 Pages Posted: 23 Sep 2004 Last revised: 22 Feb 2009
Date Written: September 22, 2004
In recent years a debate has emerged over whether parity exists between Congress and state legislatures that has yet to be the focus of significant scholarly attention. In contrast to the older dispute over the comparative strengths of federal and state courts made famous in Professor Burt Neuborne's 1977 Harvard Law Review article, The Myth of Parity, this new debate questions the competence of Congress compared to that of state and local legislatures to define and make enforceable individual rights.
Whether parity exists between state and federal legislatures is especially salient in light of the Supreme Court's ongoing Federalism Revolution which has reduced Congress's legislative powers and created a vacuum in the protection of individual rights - presumably to be filled by the states. The most important question in the wake of those lines of cases is whether individual rights can still be effectively protected in the absence of a strong national legislature? Or has something significant been lost?
Our article, The New Parity Debate: Congress and Rights of Belonging, argues that Congress plays an irreplaceable role in the protection of individual rights, such that the inevitable result of a reduction in that institution's power will be a rollback in those rights. We are particularly concerned about federal legislation that promotes a more inclusive vision of who belongs to the national community of the United States and that facilitates equal membership in that community. We refer to those rights as rights of belonging. State legislation is simply not an adequate substitute for federal legislation because it must necessarily be piecemeal and varied. In contrast, Congress has greater institutional competence to determine when there is a need for rights of belonging than individual state legislatures have, only Congress can create a nationally uniform baseline of rights, and a shared understanding of rights of belonging reinforces those rights and strengthens our political community. We conclude that the Supreme Court should not attempt to delegate Congress's role in protecting rights of belonging to state governments based on the assumption that there is parity between the institutions.
Keywords: federal courts, federalism, parity, rights of belonging, civil rights
Suggested Citation: Suggested Citation
Morgan, Denise C. and Zietlow, Rebecca E., The New Parity Debate: Congress and Rights of Belonging (September 22, 2004). NYLS Public Law Research Paper No. 04/05-5; Univeristy of Cincinnati Law Review, Vol. 73, No. 4, 2005. Available at SSRN: https://ssrn.com/abstract=594441 or http://dx.doi.org/10.2139/ssrn.594441