The McCulloch theory of the Fourteenth Amendment: City of Boerne v. Flores and the original understanding of section 5. From: Yale Law Journal | Date: October 1, 1999| Author: Engel, Steven A. | 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.Copyright information

The author argues that scholars improperly focus on the judicial branch as the ultimate interpreter of the Fourteenth Amendment to the Constitution. The Framers, by not codifying a definite set of rights, allowed Congress the discretion to protect civil liberties against state infringement.

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 Cong...

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