The Strongest Branch of Liberty

Louis Fisher reminds us that historically it has been Congress—dysfunction and all—that has most advanced our rights.

Which branch of government comes to mind when you think of your rights? Many, if not most, Americans will think first of the judiciary. They might reference the Obergefell case, or Brown v. Board of Education. Some of us associate rights with the presidency and point to Lincoln’s Emancipation Proclamation or President Obama’s executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or identification. Few Americans, however, consider the legislative branch as a font of rights and a defender of liberties.

Congress: Protecting Individual Rights by Louis Fisher University Press of Kansas, 208 pp.

Congress: Protecting Individual Rights
by Louis Fisher
University Press of Kansas, 208 pp.

Which, as Louis Fisher’s new book shows, is both a shame and historically inaccurate. Consider, for example, the plight of Lilly Ledbetter. She was a supervisor at a rubber plant for twenty years. After she retired, she filed a lawsuit against Goodyear Tire & Rubber Company for discrimination, because she had been paid $500 to $1,500 per month less than what her male counterpart supervisors earned at the end of her tenure. Her claim was considered by the Supreme Court under the 1964 Civil Rights Act’s Title VII.

On May 29, 2007, the high court ruled against her, finding that she had not filed her claims with the Equal Employment Opportunity Commission sufficiently quickly. Ledbetter’s congressional backers were quick to come to her defense. Senator Ted Kennedy promptly denounced the decision as undermining the law’s intent in enacting Title VII, and Congress soon took up legislation to, as New York Representative Jerrold Nadler put it, “correct the Supreme Court.” Although Republicans stymied the bill for more than a year, Ledbetter was vindicated when the new Congress enacted the bill in January 2009 and President Obama signed it into law.

The Ledbetter case is not an anomaly. From the very beginning, Fisher demonstrates, our national legislature has played a critical role in recognizing and expanding Americans’ rights. The very first Congress took up a slew of proposals to officially recognize certain rights, ultimately enacting those that became the Bill of Rights. Congress, not the president or the Supreme Court, also amended the Constitution to free slaves, to grant women and nonwhite adults the vote, and to decree that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Congress passed all these amendments before 1920 and supplemented them with civil rights statutes.

The Civil Rights Act of 1875 banned racial discrimination in public accommodations and public transportation. It also forbade keeping nonwhites from juries, a critical factor in actuating the constitutional right to a trial by a jury of one’s peers. Between 1957 and 1970, Congress passed a half-dozen major civil rights laws, such as the Voting Rights and Fair Housing Acts. In the early 1970s, both the House and the Senate passed the Equal Rights Amendment to the Constitution.

Meanwhile, from the founding of the Republic through the 1920s, the Supreme Court rarely ruled on individual rights. When it did, its decisions were usually hostile to demands for greater rights for African Americans, women, children, religious minorities, and Native Americans. In matters concerning racial minorities, the Court’s early work was infamously bad. The Dred Scott decision of 1857 made blacks human chattel, and the civil rights cases of 1883 struck down the aforementioned, congressionally backed Civil Rights Act of 1875. Twenty-one years later, Plessy v. Ferguson would uphold legal separation of the races.

The Court’s anti-rights decisions also extended to other marginalized groups. When Mormons challenged a state law against polygamy, the high court said the First Amendment’s religious freedom did not cover that sort of religious practice. The Court ruled that “polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people” (Reynolds v. United States, 1878). When the state of Virginia wanted to sterilize Carrie Buck because she was mentally disabled, Oliver Wendell Holmes and the Court said to go right ahead: “Three generations of imbeciles is enough” (Buck v. Bell, 1928). The Court also explicitly prohibited female attorneys from litigating before it until Congress passed a law in 1878 that forbade gender discrimination. As late as 1948, the Supreme Court saw nothing wrong with a Michigan law that forbade any woman from bartending unless she was the daughter or wife of a tavern owner (Goesaert v. Cleary).

So why is it that Congress gets so little credit for its civil rights achievements?

In part, it is because the history of rights in this country usually is told with the Supreme Court or a president as the heroic protagonist. Just look at our high school and collegiate textbooks, which feature virtuous presidents and august justices as the heroes of liberty: Abraham Lincoln freed the slaves, and Earl Warren desegregated the schools. Presidents and black-robed jurists are easily identifiable actors. Contrast that with Congress, which presently has 535 members whose faces change every two years. Try as they might, few congressmen can persuasively claim sole credit for any rights-expanding legislation; all laws demand the work and assent of many congressmen. Who remembers the sponsor of the Lilly Ledbetter legislation? Very few of us. (For the record, it was Democratic Representative George Miller of California in the House, and Maryland Senator Barbara Mikulski in the Senate.)

Additionally, the Court has garnered disproportionate limelight and accolades for its decisions that expanded rights. The Fourteenth Amendment’s “due process” protection became a vehicle for applying or “incorporating” federal rights protections to state actions. (Previously, the Court held that the Bill of Rights applied only to federal government actions—which meant state officials could violate one’s freedom of speech or engage in “unreasonable search and seizures.”) It is thanks to Supreme Court decisions that Americans now have a right to privacy; women have a limited right to abortion; the children of Jehovah’s Witnesses need not salute the flag in school; individuals arrested must be made aware of their rights and given access to legal counsel; a resident of Chicago may legally own a handgun; and anyone is free to assemble publicly—even if he or she is a Nazi.

So why is it that Congress gets so little credit for its civil rights achievements? In part, it is because the history of rights in this country usually is told with the Supreme Court or a president as the heroic protagonist.

But Congress itself must shoulder some of the blame for its low regard. As Fisher documents, our nation’s legislature has performed spectacularly badly in many instances by failing to protect the civil rights of the citizens it was supposed to serve. Through the Alien and Sedition Acts of 1798, Congress threatened dissent with punishment. Congress’s House Un-American Activities Committee (which Newt Gingrich says he wants to bring back) and Senator Joseph McCarthy maniacally assaulted the First Amendment. Bigoted legislators have frequently stymied civil rights legislation. Furthermore, Congress did its reputation no favors by accepting it supinely as presidents unleashed extraordinary rendition, detentions at Guantanamo, enhanced interrogation, and extralegal mass surveillance.

Astonishingly, Congress often abdicates its duty to defend liberty to the Supreme Court. “Members of Congress,” Fisher reminds us, “take an oath to support the Constitution, not to defer to the Court or the President.” Yet when the Court issues an opinion, legislators will throw up their hands and declare the matter settled once and for all. Such deference diminishes Congress in the eyes of the public and “undermine[s] the system of checks and balances that safeguards constitutional government.” Legislators, Fisher instructs,

should not automatically accept a Supreme Court decision. They should feel at liberty to state their disagreement with a decision, explaining in plain words why it is unsound. Frank and informed criticism can help the Court rethink its reasoning. Total deference will not. Members of Congress know that the Court is capable of making errors and has a long record of doing so, at substantial cost to the rights and liberties of individuals and minorities. There is no reason to imply it is unpatriotic or un-American to find fault with decisions of the Supreme Court.

The judiciary, again, is not infallible, as Congress amply details. It never has been and never will be. Protecting rights is a collective enterprise and requires the active support of all three branches of government. Congress needs to do its part, but it won’t unless we voters choose members who will stand up for rights and liberties.

Kevin R. Kosar and Adam Chan

Kevin R. Kosar is a senior fellow at the R Street Institute and edits LegBranch.com. Adam Chan is a research assistant at R Street.