Thursday, January 15, 2009

Tsesis on constitutional history, the American Creed and Congressional authority

Alexander Tsesis, Loyola University of Chicago Law School, draws upon constitutional history in a new article, Principled Governance: The American Creed and Congressional Authority. It is forthcoming in the Connecticut Law Review (2009). Here's the abstract:
The Supreme Court recently limited Congress's ability to pass civil rights statutes for the protection of fundamental rights. Decisions striking sections of the Violence Against Women Act and the Americans with Disabilities Act focused on states' sovereign immunity. These holdings inadequately analyzed how the Reconstruction Amendments altered federalism by making the federal government primarily responsible for protecting civil rights. The Supreme Court also overlooked principles of liberty and equality lying at the foundation of American governance. The Court's restrictions on legislative authority to identify fundamental rights and to safeguard them runs counter to the central credo of American governance that all three branches of government are responsible for protecting individual rights for the general welfare.
This Article examines the central principles of American governance. It first analyzes the role of liberty and equality in the founding generation's legal thought. It then reflects on how abolitionists adopted these principles and argued for their universal applicability. Abolitionist theories then entered the Constitution through the Reconstruction Amendments, which granted Congress the power to secure the privileges and immunities of national citizenship against arbitrary abuses. Since the late nineteenth century, however, the Court has diminished the potential uses of these amendments. Several Rehnquist Court decisions, such as United States v. Morrison and Board of Trustees v. Garrett, are indicative of the continuing constraint on legislative civil rights authority.

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