The McCulloch theory of the Fourteenth Amendment: City of Boerne v. Flores and the original understanding of section 5. Yale Law Journal | October 1, 1999| | COPYRIGHT 1999 Yale University, School of Law. This material is published under license from the publisher through the Gale Group, Farmington Hills, Michigan.  All inquiries regarding rights should be directed to the Gale Group. (Hide copyright information) Copyright

I. INTRODUCTION

Twentieth-century eyes have long read the Fourteenth Amendment as though it were addressed to the judiciary. The historical fact that the Supreme Court, and not Congress, has taken the lead in defining our constitutional liberties has left lawyers looking to the courts to fulfill the promises that lie at the amendment's core. Whether the amendment prevents a state from operating race-segregated schools, proscribing adult sexual activity, or sponsoring affirmative action has been seen first and often exclusively as a question for the courts. ...

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