E-Book Overview
In Enforcing Equality, Rebecca E. Zietlow assesses Congress's historical role in interpreting the Constitution and protecting the individual rights of citizens, provocatively challenging conventional wisdom that courts, not legislatures, are best suited for this role.
Specifically focusing on what she calls “rights of belonging”—a set of positive entitlements that are necessary to ensure inclusion, participation, and equal membership in diverse communities—Zietlow examines three historical eras: Reconstruction, the New Deal era, and Civil Rights era of the 1960s. She reveals that in these key periods when rights of belonging were contested and defined, Congress has played the role of protector of rights at least as often as the Supreme Court has adopted this role. Enforcing Equality also engages in a sophisticated theoretical analysis of Congress as a protector of rights, comparing the institutional strengths and weaknesses of Congress and the courts as protectors of the rights of belonging.
With the recent new appointments to the Supreme Court and Congressional elections in November 2006, this timely book argues that individual rights are best enforced by the political process because they express the values of our national community, and as such, litigation is no substitute for collective political action.
E-Book Content
Enforcing Equality
Enforcing Equality Congress, the Constitution, and the Protection of Individual Rights
Rebecca E. Zietlow
a NEW YORK UNIVERSITY PRESS New York and London
new york university press New York and London www.nyupress.org © 2006 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data Zietlow, Rebecca E. Enforcing equality : Congress, the Constitution, and the protection of individual rights / Rebecca E. Zietlow. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-8147-9707-5 (cloth : alk. paper) ISBN-10: 0-8147-9707-5 (cloth : alk. paper) 1. Equality before the law—United States. 2. Civil rights—United States. 3. United States. Congress. I. Title. KF4764.Z54 2006 342.7308'5—dc22 2006012447 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1
To David, Alice, and Zoe and To the memory of my dear friend, Denise C. Morgan
Contents
Acknowledgments
ix
1
Introduction
1
2
Congress and Rights before the Civil War
12
3
Belonging, Protection, and Equality: The Reconstruction Congress
38
Belonging and Social Citizenship: The New Deal and the Wagner Act
63
5
To Secure These Rights: The 1964 Civil Rights Act
97
6
The New Parity Debate
128
7
Rights of Belonging and Popular Constitutionalism
145
8
Considering Rights of Belonging, Moral Values, and Community
160
Notes Bibliography Index About the Author
169 235 253 265
4
vii
Acknowledgments
This book is the result of years of work and help from countless friends and colleagues. It began as an analysis of the Supreme Court’s interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment after its ruling in Saenz v. Roe. As I researched the meaning of the privileges and immunities of citizenship and the Citizenship Clause, I delved into the history of the Fourteenth Amendment. I soon shifted my focus from court enforcement of those provisions to the potential of congressional enforcement of the rights of federal citizenship. My focus on congressional enforcement power was due to recent Suprem