Congress and the President Protect Civil Liberties
Congress and the President Protect Civil Liberties
Justin Dyer, University of Texas at Austin
Courts are often heralded as the primary guardians of civil rights and liberties in the United States. Landmark rulings, such as Brown v. Board of Education (1954), which held that racially segregated public schooling violates the Fourteenth Amendment’s Equal Protection Clause, have solidified the courts’ reputation as champions of individual rights. Yet the judiciary is not the most important branch of government when it comes to safeguarding rights and liberties. The legislative and executive branches wield more power, and are therefore more important, for protecting basic rights and liberties.
Unlike courts, which can only decide cases or controversies properly brought before them, Congress can proactively make policy to protect rights and liberties throughout the nation, as it did in the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Americans with Disabilities Act of 1990. The Civil Rights Act of 1964 and its enforcement by the executive branch arguably did more to advance the cause of desegregation than the Supreme Court’s celebrated opinion in Brown v. Education (1954), which was widely ignored and defied by lower courts and state officials in the decade after Brown.
Arkansas Governor Orval Faubus, for example, initially ordered the Arkansas National Guard to prevent the integration of Little Rock High School in the fall of 1957. It required action by President Eisenhower, who called up the National Guard and sent in the 101st Airborne Division of the U.S. Army, to enforce desegregation in Little Rock—and then only for nine students. That same year, Congress created the Civil Rights Division within the Department of Justice to investigate and prosecute violations of civil rights laws. After the passage of the Civil Rights Act of 1964, the Department of Justice was responsible for enforcing desegregation in schools and public facilities, sometimes in the face of violent resistance.
The legislative and executive branches have often worked together to advance protections for civil rights and liberties. President Harry Truman issued an executive order in 1948 desegregating the armed forces and setting a precedent for federal action on civil rights years before the Supreme Court held that segregation violated the Constitution. Similarly, President Lyndon Johnson’s advocacy for the passage of the Civil Rights and Voting Rights Acts demonstrates how the president can galvanize public opinion and mobilize legislative support for broad national legislation.
Courts remain important for adjudicating cases that arise under the Constitution and under the laws passed by Congress, but the courts’ power is limited in significant ways. In the U.S. constitutional system, courts are reactive rather than proactive. Courts must wait until a case or controversy that is ripe for adjudication arises. Years of policy advocacy, cultural change, legislative bargaining, and executive branch enforcement at the federal and state level often predate any landmark judicial ruling in the area of rights and liberties.
Even the courts’ power to hear cases is constrained by legislative and executive branch action. Article III of the U.S. Constitution vests the “judicial Power of the United States” in the Supreme Court and in whatever lower courts “Congress may from time to time ordain and establish.” The entire structure of the federal judiciary is a creation of Congress. In various judiciary acts, starting with the Judiciary Act of 1789, Congress has created a three-tiered federal court system with various courts of appeal and trial courts below the Supreme Court. Congress has the authority to make exceptions to the Supreme Court’s jurisdiction, set the annual budget for the federal courts, and determine how much discretion the courts have over their own dockets. Congress cannot pass these bills without the president’s signature, and the president is responsible for nominating judges to the federal courts and making final federal court appointments with the advice and consent of the Senate. The courts are constrained, in numerous ways, by the executive and legislative branches.
In Federalist #78, Alexander Hamilton famously described the judiciary as the least dangerous branch of government because it had “neither force nor will, but merely judgment.” Courts cannot appropriate money, pass laws, or ensure that the laws are faithfully executed. A court may only decide cases properly brought before it and even then “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” In Article IV of the U.S. Constitution, the Framers required that all government officials at the state and federal levels would “be bound by Oath or Affirmation, to support this Constitution.” Maintaining this Constitution, and its bedrock protections for civil rights and liberties, is a task for all government officials. While the judicial power is essential to the rule of law, courts in the United States exist and operate within a constitutional system that significantly restraints courts’ ability to act as the sole or primary guardian of civil rights and civil liberties.