Tuesday, April 24, 2007

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

Rebecca E. Zietlow, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights (New York University Press, 2006) is reviewed on H-Law by Peter Charles Hoffer, Department of History, University of Georgia. Hoffer writes, in part:
The title of Rebecca E. Zietlow's sweeping and intelligent book is a little misleading. This is not a book about Congress's workings or about individual rights, but about Congress's ability, in its best moments, to protect "the rights of belonging," collective rights of groups to play an equal role in American life. What is more, the title never mentions the doppelganger in the text, the High Court, a subject occupying about half the pages. For Zietlow's argument is that the Congress, a representative democratically elected body (facts assumed rather than proved, for until well into the twentieth century-- in large measure because of the rulings of the High Court, not the Congress--Congress did not represent people of color, women, Native Americans, immigrants, the young, and too often the poor) is a far more trustworthy protector of the rights of belonging than the High Court....
While much that Zietlow writes is intended to fit into the on-going dialogue among legal writers and political scientists about rights and institutions (indeed, entire chapters are literature reviews and commentary), the organization of the book and its first five chapters are historical. That history begins with James Madison's attempt to give to Congress a negative over state legislation, and ends with Congress's Religious Freedom Restoration Act (1993) attempt to override the High Court's rejection of the free exercise claim in _Smith v. Oregon_ (1990), a law that the Court controverted in _City of Boerne v. Flores_ (1997). The evidence in these chapters is, by her own admission, selective, but the case for selectivity follows from her choice of "rights of belonging" over rights of individual liberty. Belonging meant inclusion and equality, and these issues are particularly sensitive to majority rule. Individual rights, often revolving around private property taken for public use (think taxes, for example), pits the Court, the defender of the privileged few,against the many. No better example can be found than the Fuller's Court's aversion to any social engineering, including federal income taxes.
Thus Zietlow finds herself agreeing with Mary Ann Glendon that the Court's emphasis on liberal rights is too focused on the individual and too adversarial, and should pay more attention to community and majority values. The emphasis on individual rights, perhaps inevitable when Courts consider cases brought by individuals, "inhibits dialogue over the fundamental values that underlie rights of belonging" (p. 163).

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