Tsesis on Safeguarding Fundamental Rights: Judicial Incursion into Legislative Authority

Alexander Tsesis, Loyola University of Chicago, has posted a new essay, Safeguarding Fundamental Rights: Judicial Incursion into Legislative Authority. I would read this alongside of Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History . Here's the abstract:

This article claims that the 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 an important role in civil rights development. The principle of liberal equality, which is found in the Fourteenth Amendment, is central to a national civil rights policy.

Part II of the article discusses the concepts of liberty and equality during the colonial 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. This 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 the privileges and immunities of national citizenship against arbitrary abuses. Debates on the Thirteenth and Fourteenth Amendments, which are the subjects of Part IV, made the principle of equal rights an enforceable part of the Constitution. The article concludes with a criticism of recent Supreme Court decisions, such as United States v. Morrison and Board of Trustees v. Garrett, which have constricted federal prerogatives to protect civil rights.