Congress: Protecting Individual Rights

by Louis Fisher

Overview

When asked which branch of government protects citizens’ rights, we tend to think of the Supreme Court—stepping in to defend gay rights, for example, in the recent same-sex marriage case. But as constitutional scholar Louis Fisher reveals in his new book, this would be a mistake—and not just because a decision like the gay marriage ruling can be decided by the opinion of a single justice. Rather, we tend to judge the executive and judicial branches idealistically, while taking a more realistic view of the legislative, with its necessarily messier and more transparent workings. In Congress, Fisher highlights these biases as he measures the record of the three branches in protecting individual rights—and finds that Congress, far more than the president or the Supreme Court, has defended the rights of blacks, women, children, Native Americans, and religious liberty.

After reviewing the constitutional principles that apply to all three branches of government, Fisher conducts us through a history of struggles over individual rights, showing how the court has frequently failed at many critical junctures where Congress has acted to protect rights. He identifies changes in the balance of power over time—a post-World War II transformation that has undermined the system of checks and balances the Framers designed to protect individuals in their aspiration for self-government. Without a strong, independent Congress, this book reminds us, our system would operate with two elected officers in the executive branch and none in the judiciary, a form of government best described as elitist—and one no one would deem democratic.

In light of the history that unfolds here—and in view of a Congress widely decried as dysfunctional—Fisher proposes reforms that would strengthen not only the legislative branch’s role in protecting individual rights under the Constitution, but also its standing in the democracy it serves.

Product Details

ISBN-13:	9780700622115
Publisher:	University Press of Kansas
Publication date:	02/29/2016
Pages:	208
Product dimensions:	6.40(w) x 9.30(h) x 0.90(d)

About the Author

Louis Fisher is Scholar in Residence at The Constitution Project in Washington, DC. His many books include Constitutional Conflicts between Congress and the President, Sixth Edition, Revised; Presidential War Power, Third Edition, Revised; and Military Tribunals and Presidential Power, winner of the Richard E. Neustadt Award.

Table of Contents

Preface

Note on Citations

1. Judging the Three Branches

Congress

The President

The Judiciary

The Warren Court

Individual Rights at Risk

Seeking a Better Balance

2. Founding Principles

Breaking with the British Model

Lessons from the Continental Congress

Drafting the Constitution

Proposing a Title for the President

the Bill of Rights

Scope of Public Participation

3. The Rights of Blacks

Ending Slavery

The Civil War

Congressional Safeguards, Judicial Opposition

Public Accommodations Legislation

From Plessy to Brown v. Board

The Civil Rights Act of 1964

The Continuing Dialogue

4. The Rights of Women

Blackstone’s Doctrine of Coverture

Myra Bradwell’s Effort to Practice Law

Belva Lockwood Goes to Congress

Judicial Rulings from 1875 to 1971

Equal Rights Amendment

Abortion Rights

Equal Pay Legislation

The Lilly Ledbetter Case

Additional Legislative Activity

5. The Rights of Children

Legislation on Child Labor

Invoking the Commerce Power

Turning to the Taxing Power

Congress Keeps Trying

Compulsory Flag Salutes

In the Lower Courts

The Supreme Court Decides

Having Second Thoughts

6. Protecting Religious Liberty

Constitutional Principles

Conscientious Objectors

Pacifism after World War I

Chaplains

Legislation on Polygamy

Exemptions in Prohibition Statutes

The Yarmulke Case

7. The Rights of Native Americans

Propagating the Gospel

Indian Removal

Stirrings of Reform

Protective Legislation

Religious Use of Peyote

Religious Freedom Restoration Act (RFRA)

Edison Chiloquin and Klamath Indians

8. Strengthening U.S. Democracy

Making Time for Legislative Work

Protecting Congressional Prerogatives

Improving Institutional Resources

Eliminating Gerrymandered Districts

Limiting Campaign Expenditures

About the Author

Index of Cases

Index of Subjects

Editorial Reviews

"In this slender volume, Fisher has written a fascinating and thoroughly researched analysis of Congress as a vital protector of individual rights."—Law Library Journal

"A valuable book, engagingly written in language accessible to lawyers, graduate students, and undergrads alike; indeed, as assigned reading it would deepen students’ understanding of the complexity of legal and social change."—Congress & the Presidency

"With illuminating case studies and analysis of judicial performance, Lou Fisher very effectively challenges the conventional academic wisdom that the courts are the most reliable protectors of individual rights in the U.S. Indeed, he convincingly undercuts what has routinely been taught for many years about the judicial branch, giving us a new appreciation of the limits of the courts and the central role of Congress in leading the way."—Mark J. Rozell, Dean of the School of Policy, Government, and International Affairs at George Mason University

"Louis Fisher is not only one of the nation’s pre-eminent constitutional analysts, but a foremost champion of Congress’s much-maligned role in the separation of powers system. In this book, Fisher makes an argument found nowhere else—that Congress has played a unique and nearly unacknowledged role as a champion of individual rights. His careful survey of Congress’s path-breaking role in protecting and expanding rights for African Americans, women, children, Native Americans, and yes, even religious liberty shows that our national legislature has a proven rights-protection track record. No, that record is not perfect any more than is that of the courts or the president. Still, Fisher may finally succeed in persuading the nation’s doubters that the Founders got it right when they made Congress the first branch of our American government. Once more, Fisher illuminates formerly unseen corners of the constitutional system."—Robert J. Spitzer, Distinguished Service Professor of Political Science at SUNY Cortland, and author of Saving the Constitution from Lawyers

"Who guards individual rights in the American political system? Most Americans would point to the Supreme Court. Louis Fisher, one of the nation’s premier scholars of the separation of powers, makes a spirited argument in favor of Congress, the first branch of government. This lively and provocative book examines the role of the three branches across history and over the many types of rights that matter to Americans of all stripes. It makes a strong case for Congress—along with a plea to ameliorate its current dysfunction."—Norman Ornstein, American Enterprise Institute Scholar and author of The Broken Branch: How Congress Is Failing America and How to Get It Back on Track

"Louis Fisher’s work is always timely and significant. In this book, he punctures Supreme Court myths by demonstrating how it long blocked the development of key constitutional rights. This book is a must for understanding Congress’s early struggles to gain protections for African Americans, women, children, religious liberty, and American Indians. Fisher also offers a fresh examination of why Congress has lost much of its institutional capacity to forge public policy on these and other fronts."—Jasmine Farrier, author of Congressional Ambivalence: The Political Burdens of Constitutional Authority

From the Publisher