Library of Law and Liberty converses with UPK author Louis Fisher on his book, “Congress: Protecting Individual Rights”. Library of Law and Liberty states, “Fisher argues that contrary to popular belief, Congress, not the Court, has been the foremost champion in protecting the rights of racial minorities, children, Native Americans, and religious liberties.”
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 inside “Congress: Protecting Individual Rights,” 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.
President Obama’s plans to expand U.S. military involvement in Syria and Iraq without congressional approval continues the unconstitutional conduct of Presidents after World War II. Although Congress deserves a strong rebuke for failing to protect its constitutional authority over the war power, the real fault lies with the pattern of unilateral presidential actions. In June 1950, President Harry Truman launched offensive action against North Korea without coming to Congress for prior authority as required by the UN Participation Act of 1945. President Lyndon Johnson decided, after receiving the Gulf of Tonkin Resolution for a limited military response, to escalate the war year after year in the face of public and congressional opposition. President Bill Clinton used military force on numerous occasions, including in Bosnia and Kosovo, without ever seeking statutory authority. President George W. Bush took the nation to war on the basis of six claims that Iraq possessed weapons of mass destruction, with each claim proven to be empty. President Barack Obama, after promising not to repeat the unilateral actions of Bush II, supported military action in Libya in 2011 without ever seeking congressional support, leaving that country as a failed state and a breeding ground for terrorism. After exceeding the 60-90 day limit of the War Powers Resolution, his administration falsely defended the Libyan initiative by claiming that seven months of military action constituted neither war nor hostilities. A succession of presidential lies and deceptions from 1950 to the present time have greatly damaged constitutional government and the aspiration for democracy.
–Written by Louis Fisher, author of Presidential War Power (3d ed., 2013).
At a time when Congress seems determined to set new lows for being dysfunctional, it may seem strange to publish a book that explains how lawmakers for more than two centuries have protected the rights of blacks, women, children, religious liberty, Native Americans, and other minorities. The purpose is not merely to give credit to the legislative institution and understand how its performance compares favorably to the record of the executive and judicial branches. The book underscores the evident risks of putting our faith solely in Presidents and the Supreme Court. Such a decision moves us from democracy to a government with two elected officials in the executive branch and none in the judiciary. This book does more than remind us of what Congress once accomplished. It encourages a debate on specific steps needed to strengthen U.S. democracy and restore the capacity of members of Congress to discharge their constitutional duties. The intent of the book is to stimulate a dialogue on how we can protect and renew what the Framers hoped to create: a system of self-government.
–Written by Louis Fisher, a Scholar in Residence at the Constitution Project and author of the forthcoming book, “Congress: Protecting Individual Rights.”