Contracting Individual Rights

[Sanford Levinson]

Michael Curtis (to whose expertise I gladly defer) writes:

>I agree that there was to be a strong congressional role in enforcing the
14th amendment.  Of course, it is also true that one of the chief reasons
for changing from the Congress shall have the power to the No State Shall
form of section 1 (with congressional power in sec. 5) was to see that the
changes would be beyond the power of ordinary congressional or state
legislative majorities to undo.
>
I think the question is whether the change represented a
"belt-and-suspenders" approach to guaranteeing the rights protected by the
Fourteenth Amendment, or whether it represented an institutional choice of
the judiciary as against the Congress.  Obviously, I think it was the
former, so that Congress has an important role to play even if the Court
has an equally legitimate role to play if Congress starts trenching on the
rights.  But I take it that both Michael and I would agree that it is
almost perverse to read the 14th Amendment as a protector of states' rights
against an aggressive Congress.

sandy