In most circumstances, the Constitution does not oblige the courts to give any deference to the legal judgments made by legislative or executive actors in the performance of their legislative or executive functions. The enforcement powers of the Reconstruction amendments are like most congressional powers in that respect. Those amendments give Congress substantial law-making power, and the courts may be obliged or permitted to defer to Congress’ judgment about the suitability of its chosen means to the Constitution’s ends. The ends Congress may pursue, however, are specified by the Constitution. For the Reconstruction amendments, those ends are found in the…
More Responses
My thanks to the folks at Law & Liberty for inviting me to respond to Josh Hawley's provocative essay on the need for the Supreme Court of the United States to defer to reasonable congressional interpretations of the Constitution. Professor Hawley nicely tees up an issue of inter-branch cooperation in the proper enforcement of the…
