Tsesis on The Inalienable Core of Citizenship: From Dred Scott to the Rhenquist Court

Alexander Tsesis, Loyola University of Chicago, has posted a new article, The Inalienable Core of Citizenship: From Dred Scott to the Rehnquist Court. It is forthcoming in the Arizona State Law Journal. Here's the abstract:

This 150th anniversary of the Dred Scott decision presents the opportunity to assess whether the Supreme Court continues to rely on notions of states' rights doctrine to thwart civil rights initiatives. Particularly suspect are recent findings that Congress abused its Fourteenth Amendment Section 5 authority in passing the Religious Freedom Restoration Act, the Violence Against Women's Act, and parts of the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). While those decisions by no means treat victims as sub-humans, in the way that Dred Scott did blacks, they display a knee jerk rejection against federal efforts to protect individual rights for the common good.

This Article evaluates the extent to which congressional authority under the Thirteenth and Fourteenth Amendments, which were designed to overrule Dred Scott, extends to the protection of inalienable rights. The second part reflects on the universal rights Revolutionaries claimed were at the core of nationhood. That part also examines how the pragmatic, constitutional compromises they made for the sake of union sullied their achievements. The third part examines the extent to which Dred Scott distanced itself from the protection of universal rights that transcend state sovereignty. Part four discusses Reconstruction of the American conception of citizenship through both constitutional amendment and legislative initiatives. That section further considers how the Supreme Court undermined changes to the Constitution, gravitating back to the antebellum primacy of state authority over universally recognized rights. Part five discusses post-Reconstruction judicial interpretations of the Fourteenth Amendment. Part six then delves into some recent limitations on federal civil rights authority, which the Rehnquist Court predicated on state sovereignty, swinging the pendulum away from the Warren Court deference to legislative efforts on behalf of civil rights back to the Taney Court's narrow construction of federal powers.