Posted on 05/21/2002 11:54:40 AM PDT by tpaine
Of the three, the judiciary is the only one whose only job is to determine whether something's illegal, rather than simply undesirable. The other two, as you started to indicate, can take action for any reason they wish. Therefore, it would seem strange to have a Constitution with all these provisions and requirements, and then leave its enforcement up to people who can just do whatever they want anyway. So that's where I disagree with Hamilton, when he said that the people would make everything right, so there's nothing to worry about. I don't know what the Greek or Latin term for it is (maybe general_re can help me out here, if he's still lurking), but it's basically a "solve everything" argument, which really solves nothing.
Under the circumstances, what more do you think courts should reasonably be expected to do?
I expect them to uphold the law. As Hamilton correctly states in Fed 33, "A law for abrogating or preventing the collection of a tax laid by the authority of a State (unless upon imports and exports) would not be the supreme law of the land, but an usurpation of power not granted by the constitution." Since the judicial power, by definition, is the power to apply the law, that would have to include the power to determine whether or not a particular act of Congress is within its lawful power granted under the Constitution, regardless of how uncomfortable they might be in making such a ruling. And there's really no need for the courts to have to go into too much detail, investigating whether or not there really is a "need" for a particular measure. How much "proof" does anyone require that a government needs to be able to protect its own officers from violence and from legal harassment by lower governments? How much "investigating" does anyone need to do in order to determine that allowing perjury in courts is not a swift idea? Likewise, they can safely say as a matter of principle that in order to outlaw certain activities, it is not necessary to outlaw ancillary activities. It just isn't, and it clearly involves the creation of a new power altogether, not an adjunct to an existing power. That is what "necessary and proper" means.
Agreed. Allowing perjury is not a swift idea. However, the problem is that Jefferson didn't think that Congress had the constitutional power to enact a "swift idea" unless it was also strictly necessary for the exercise of a specified power. In his view, Congress did not have the authority to pass laws "which are merely 'convenient' for effecting the enumerated powers."
Likewise, they can safely say as a matter of principle that in order to outlaw certain activities, it is not necessary to outlaw ancillary activities.
We can't even have an Inaugural Parade without prohibiting certain traffic. While it is not always strictly necessary to outlaw certain activities, it often is necessary to do so, by anyone's definition of "necessary." And quite often, outlawing ancillary activities makes it more "convenient" for the exercise of specific powers.
Do you really think that judges can become involved in separating the "necessary" from the merely "convenient" means of exercising specific powers without introducing into the equation their own personal notions of which laws consist of "swift ideas" and which do not? I suspect that that is all that you would get if you could find a way to force judges to enter that swamp.
It just isn't, and it clearly involves the creation of a new power altogether, not an adjunct to an existing power. That is what "necessary and proper" means.
There isn't any way for me to tell you that your desire for a more "activist" Supreme Court is constitutionally right or wrong. All that I have tried to do is to provide you with some of the reasons for which the Court has been reluctant to move in that direction.
Returning to the Voting Rights Act, the Congress made the factual determination that the suspension of literacy tests was "necessary" in order to enforce the Fifteenth Amendment. You have suggested an "alternative means" that Congress might have chosen to enforce the amendment (passing laws which might require a separate judicial proceeding for each alleged violation by each alleged victim). It is entirely possible that the means you would have selected might have eventually worked. The means that Congress selected did work. Except to the extent that one of two alternatives violates a specific prohibition in the Constitution, the judiciary is very unlikely to become involved in the choice between two alternative means. Courts view that as a legislative function which is none of their business. So, if you were inclined to want to convince the Supreme Court that the Voting Rights Act is unconstitutional, your best bet would be to find a specific constitutional prohibition in which to frame your argument.
Tenth Amendment?
Before we go any further, something needs to be cleared up. A judge who doesn't shy away from legal questions that are properly under his purview isn't an "activist" judge, he's simply a judge who's doing his job. Activist judges are judges who rule on the basis of their personal opinions, rather than their legal sense.
Do you really think that judges can become involved in separating the "necessary" from the merely "convenient" means of exercising specific powers without introducing into the equation their own personal notions of which laws consist of "swift ideas" and which do not?
There are some very common-sense ways of determining what "necessary and proper" is and is not. For one thing, any law that protects against violence or fraud that directly disrupts the administration of law would be valid, and perjury would certainly fall under that category. But I don't intend to speculate too much on how judges would rule. I'm sure there would be many in the present judiciary who don't know a solid principle from a PC conceit, just as there are many who don't seem to understand the meaning of the word "process". But all I know is how they should rule - that is, what I expect of them.
In order to outlaw certain activities, it is not necessary to outlaw ancillary activities.
We can't even have an Inaugural Parade without prohibiting certain traffic. While it is not always strictly necessary to outlaw certain activities, it often is necessary to do so, by anyone's definition of "necessary." And quite often, outlawing ancillary activities makes it more "convenient" for the exercise of specific powers.
Your response doesn't really answer my point. I was saying that in order to outlaw certain activites, there's no need to outlaw other activities. That's different from exercising other powers, such as those that involve performing a particular physical task (such as an inaugural ball). In those cases, it may be necessary to outlaw certain activities that obstruct that task. But that has nothing to do with enforcement of the 15th amendment.
Returning to the Voting Rights Act, the Congress made the factual determination that the suspension of literacy tests was "necessary" in order to enforce the Fifteenth Amendment. You have suggested an "alternative means" that Congress might have chosen to enforce the amendment (passing laws which might require a separate judicial proceeding for each alleged violation by each alleged victim). It is entirely possible that the means you would have selected might have eventually worked.
I don't know if you were intimating that "passing laws which require a separate judicial proceeding for each alleged violation by each alleged victim" is some kind of quaint, off-the-cuff idea, but I should remind you that that's the way our whole system of law works. Our laws against murder, theft, drunk driving, money laundering, etc., all work according to that very principle. "Necessary and proper laws", if that means anything, means laws that conform to the basic principles of law that our society is built on, not just grabbing whole new powers just because you don't want to deal with all that due process stuff.
The means that Congress selected did work.
So? Congress also has nearly unrestricted power to legislate for the District of Columbia. Suppose they want to outlaw SUV's in the district. Well, it would sure make it a lot easier if they could just outlaw SUV's anywhere within a 100-mile radius of the city, wouldn't it? But they're clearly stepping into new zones of power by doing that. Any judge with common sense could see that - regardless of how many studies and how much testimony they receive, moaning about how difficult it is to enforce compliance with all these out-of-towners coming in and out, blah, blah, blah.
Except to the extent that one of two alternatives violates a specific prohibition in the Constitution, the judiciary is very unlikely to become involved in the choice between two alternative means.
Which makes a total mockery of the principle of limited, delegated powers. In case you didn't know why the original Constitution didn't come with a bill of rights, it was because the convention was afraid of this very scenario - that any power that isn't expressly prohibited would be assumed to be valid.
Courts view that as a legislative function which is none of their business.
So Congress is to decide for themselves how their own powers are limited? Checks and balances, anyone?
Actually, the term “activist” has ordinarily been used to describe judges who have shown a willingness to “second guess” the constitutional interpretations or judgments of other more political bodies. Such judges are often criticized for “substituting their own judgment for the judgment of the [fill in the blank with Congress, legislature, people, etc.]” and for “making the law rather than just applying the law.” The “activist” label is not reserved for judges with any particular political philosophy. Any court, whether liberal or conservative, which uses the Constitution to frustrate the objectives of legislatures will be castigated as an “activist” court.
The problem stems from the fact that not everyone has always accepted Marshall’s opinion in Marbury as readily as you have. Here’s a link to some Jefferson quotes on judicial review. Whenever a “bunch of unelected judges” tell the “people’s representatives” that the “people can’t have what they want,” the popularly elected politicians will squawk. They’re supposed to. It’s their job.
There are some very common-sense ways of determining what "necessary and proper" is and is not.
There are so long as you are willing to agree with Marshall, Hamilton and Washington that the “necessary and proper” clause includes more than just means which are “indispensable” to the exercise of a specified power. But the more important question concerns the extent to which the judiciary should attempt to get tangled up in the selection of “necessary and proper” means for the exercise of congressional power. These are just not judicially manageable issues and the Supreme Court has always recognized that.
I don't know if you were intimating that "passing laws which require a separate judicial proceeding for each alleged violation by each alleged victim" is some kind of quaint, off-the-cuff idea, but I should remind you that that's the way our whole system of law works. Our laws against murder, theft, drunk driving, money laundering, etc., all work according to that very principle. "Necessary and proper laws", if that means anything, means laws that conform to the basic principles of law that our society is built on, not just grabbing whole new powers just because you don't want to deal with all that due process stuff.
If the Congress had disregarded “all that due process stuff “in its selection of means for enforcing the Fifteenth Amendment, the Supreme Court would have been warranted in holding that the suspension of literacy tests was a violation of the Fifth Amendment and unconstitutional. But suspending the literacy tests did not deprive any person of life, liberty or property without due process of law.
Try to keep in mind that the purpose of the Fifteenth Amendment was to protect the franchise for black citizens so that they could participate in their own government, the same government that was collecting taxes from them. By 1965, Mississippi had been working on compliance with the Fifteenth Amendment for nearly 100 years and after all of that time and effort, 69.9% of adult whites were registered to vote while only 6.7% of adult blacks were registered. A southern president and the Congress were convinced that enforcing the Fifteenth Amendment required something more aggressive than just another legislative reminder.
So? Congress also has nearly unrestricted power to legislate for the District of Columbia. Suppose they want to outlaw SUV's in the district. Well, it would sure make it a lot easier if they could just outlaw SUV's anywhere within a 100-mile radius of the city, wouldn't it? But they're clearly stepping into new zones of power by doing that. Any judge with common sense could see that - regardless of how many studies and how much testimony they receive, moaning about how difficult it is to enforce compliance with all these out-of-towners coming in and out, blah, blah, blah.
The Congress could not base a prohibition of SUV’s outside of the District on its unrestricted power to legislate for the District any more than it could ban SUV’s in Canada based upon any purported power to ban them in the United States. The Congress suspended literacy tests in South Carolina based upon its power to enforce the Fifteenth Amendment in South Carolina.
Which makes a total mockery of the principle of limited, delegated powers. In case you didn't know why the original Constitution didn't come with a bill of rights, it was because the convention was afraid of this very scenario - that any power that isn't expressly prohibited would be assumed to be valid.
So Congress is to decide for themselves how their own powers are limited? Checks and balances, anyone?
Well, the way things are operating right now, there are checks and balances on the exercise of congressional power. In addition to the obligation of members of Congress to practice self-restraint based upon their view of Congress’s proper role, there exists the presidential veto, there exists the claimed power of the Supreme Court to declare unconstitutional any congressional acts which violates a constitutional prohibition, and there exists the power of the people to periodically monitor and control the membership of Congress to ensure that it reflects the people’s views on the exercise of congressional power. There are few subjects of more importance to members of Congress than public opinion.
From your prior responses, I’m unclear about something. Are you of the opinion that the people of the United States have too much or too little influence on the conduct of Congress?
I'm not sure exactly what your point is. It may be the politicians' "job" to complain about the judges, but it's the judges' job to restrain the politicians. No one said it would be easy, but these checks and balances exist for a reason.
There are some very common-sense ways of determining what "necessary and proper" is and is not.
There are so long as you are willing to agree with Marshall, Hamilton and Washington that the “necessary and proper” clause includes more than just means which are “indispensable” to the exercise of a specified power.
Which I can agree with, but there's still a limit.
But the more important question concerns the extent to which the judiciary should attempt to get tangled up in the selection of “necessary and proper” means for the exercise of congressional power. These are just not judicially manageable issues and the Supreme Court has always recognized that.
If you agree that there are common-sense limitations on the meaning of "necessary and proper", then there's no reason the judiciary can't enforce them. And the federal courts, in using their imagined 14th-amendment powers over the states, certainly have never had any cold feet about getting themselves into far less "judicially manageable" issues than that. Do I need to remind you once again of that awful phrase "compelling government interest"?
If the Congress had disregarded “all that due process stuff “in its selection of means for enforcing the Fifteenth Amendment, the Supreme Court would have been warranted in holding that the suspension of literacy tests was a violation of the Fifth Amendment and unconstitutional. But suspending the literacy tests did not deprive any person of life, liberty or property without due process of law.
You're missing the point. It wasn't that Congress was violating due process in its suspension of literacy tests, it's more that it was ignoring it. In other words, whenever a certain activity is prohibited by law, there exists a process by which the authorities are normally expected to act in order to enforce it, which I described in previous posts. It is unnecessary, as a matter of principle, for Congress not to be expected to rely on such a process. Of course, they still have plenty of leeway within the confines of that process, as they can set whatever consequences they desire for any violations of that prohibition, but there is intrinsically no need to go outside that general model of enforcing laws.
A southern president and the Congress were convinced that enforcing the Fifteenth Amendment required something more aggressive than just another legislative reminder.
Outlawing something other than what they were mandated to outlaw is not being more "aggressive", since it does nothing to target actual violators; it's just being more - dare I say "activist". A more aggressive approach would have been simply to enact more undesirable consequences for violations, just as one would expect whenever any law is experiencing rampant violations.
The Congress could not base a prohibition of SUV’s outside of the District on its unrestricted power to legislate for the District any more than it could ban SUV’s in Canada based upon any purported power to ban them in the United States.
Suppose the Congress disagrees with you, and says that it's chosen a necessary and proper means to enforce its law. Would you have the judiciary second-guess its chosen means?
The Congress suspended literacy tests in South Carolina based upon its power to enforce the Fifteenth Amendment in South Carolina.
It sounds like you're saying that the only bounds Congress can be held within are geographical bounds. But taking on a new power is no different from taking on powers in a new place. Both involve Congress going outside the limits of the law, and it's absurd to expect them to police themselves.
Well, the way things are operating right now, there are checks and balances on the exercise of congressional power. In addition to the obligation of members of Congress to practice self-restraint based upon their view of Congress’s proper role, there exists the presidential veto, there exists the claimed power of the Supreme Court to declare unconstitutional any congressional acts which violates a constitutional prohibition, and there exists the power of the people to periodically monitor and control the membership of Congress to ensure that it reflects the people’s views on the exercise of congressional power. There are few subjects of more importance to members of Congress than public opinion.
If we could rely exclusively on checks and balances, and on explicit prohibitions, to keep Congress in line, then there would have been absolutely no point in listing Congress' powers. If these powers were listed, and it was stated that Congress was not to exceed these powers, than that is the law. And in order for law to have any real meaning, there has to be an organ that specializes exclusively in applying that law. Checks and balances certainly help, but they can never be a substitute for a well-constituted judiciary.
And by the way, in case you hadn't noticed, Congress has hardly been, what you would call, fastidious about staying within its bounds.
From your prior responses, I’m unclear about something. Are you of the opinion that the people of the United States have too much or too little influence on the conduct of Congress?
Well, they certainly don't exert themselves on Congress as much as they should, but even if they did, I don't trust them to hold them to constitutional principles, without the aid of the judiciary. You only have to look at the ancient Greek democracies (and our modern one, for that matter) to see how disorderly and self-destructive they become. Popular will needs to be subject to checks and balances, just like all other forces in politics, in order for society to remain free.
Right, but "compelling government interest" is a phrase generally associated with a legislative end rather than a legislative means. Whenever the court feels the necessity to look for a "compelling government interest" to support a legislative objective, it is because the means that have been selected by the legislature are brushing up against an important constitutional right (e.g., freedom of the press, equal protection clause, etc.) In those particular cases, the judiciary will closely scrutinize both the means and the ends and the connection between the two.
However, in cases where the means selected do not violate or involve any constitutional prohibition, the courts are reluctant to become involved in approving or disapproving of the means selected by the legislature. When a legislature selects a means of accomplishing an objective, the means selected typically emerges from a process of negotiation and compromise of competing and often totally contradictory values and principles. The legislative selection of means nearly always reflects this political process. Critical votes for approval of a particular legislative end can come at the price of agreeing to the use of a more anemic means. In the end, the connection between means and end may not appear to be optimal from a judicial standpoint, but it may in fact be optimal from a political standpoint. Courts have a difficult time formulating principled standards by which to review the quality of legislative compromises.
That is not to say that courts never become involved in the selection of means on their own. When dealing with individual cases, they often issue orders, appoint masters, etc. as a means of dispensing justice in particular cases. And even on a larger scale, they do occasionally become intimately involved in the selection of an appropriate means to enforce constitutional rights. For example, in order to deter the government's violation of constitutional rights, the Supreme Court has fashioned an exclusionary rule barring the use of illegally obtained evidence. I suspect you may be old enough to remember court-ordered school busing as a means of school desegregation. And whatever you might feel about abortion, I think it’s fair to say that the trimesters of pregnancy delineated in Roe v. Wade do not immediately leap from the page during a casual reading of the Constitution. When courts begin devising means, it's not always a pretty picture.
Outlawing something other than what they were mandated to outlaw is not being more "aggressive", since it does nothing to target actual violators; it's just being more - dare I say "activist". A more aggressive approach would have been simply to enact more undesirable consequences for violations, just as one would expect whenever any law is experiencing rampant violations.
The adjective "activist" loses its disparaging tone when the noun that it is describing is changed from judge to legislator. Trent Lott might appreciate it if some folks considered him more of an "activist."
I just don't think that it is unreasonable to interpret the word "enforce" in the Fifteenth Amendment to mean something broader than merely the power to forbid a violation of the Fifteenth Amendment. I believe that the power to "enforce" the Fifteenth Amendment can be reasonably interpreted to include the power to make the ends of the Fifteenth Amendment a reality. And so long as the means selected by Congress do not violate any constitutional prohibition, the courts should not in my opinion get involved in the process.
If we could rely exclusively on checks and balances, and on explicit prohibitions, to keep Congress in line, then there would have been absolutely no point in listing Congress' powers. If these powers were listed, and it was stated that Congress was not to exceed these powers, than that is the law. And in order for law to have any real meaning, there has to be an organ that specializes exclusively in applying that law. Checks and balances certainly help, but they can never be a substitute for a well-constituted judiciary.
In the last analysis, we have no choice but to rely on checks and balances to keep each of the branches in line. Power can be abused by any branch of government. Unless they are impeached, federal judges serve for life. Members of Congress are automatically stripped of power unless they are reelected. Which of these checks are a more valuable tool for “the people”? When Jefferson was deeply troubled by what he viewed as congressional excesses (e.g., the Alien and Sedition Acts), he did secretly participate in an effort to construct a new check on the power of Congress (the Kentucky and Virginia resolutions), but I can’t imagine that he would have ever even considered authorizing the Supreme Court to bind the Congress by its interpretation of the Constitution.
It is not particularly important whether someone winds up concluding that the Supreme Court should or should not scrutinize the means selected by Congress more often than it does. What’s more important is to understand the structural and institutional reasons (the lack of clear textual support for judicial review and the difficulty of formulating consistent, principled judicial standards for “judging” the propriety of inherently political decisions) that might account for the Supreme Court’s tendency to exercise a lot of self-restraint in this area.
However, in cases where the means selected do not violate or involve any constitutional prohibition, the courts are reluctant to become involved in approving or disapproving of the means selected by the legislature.
The second part makes no sense in light of the first. If judges are willing to look at "compelling government interest", then they're getting themselves into far more subjective waters than by simply looking at whether or not a particular means selected is appropriate for an agreed-upon end. In the latter case, they're making an evaluation based on very specific criteria - i.e., whether or not something is appropriate for a particular purpose; whereas in the former, they're just judging whether or not they think a particular state law is appropriate at all, by whatever criteria they feel like coming up with.
And the means selected do involve a constitutional prohibition when they involve Congress assuming new powers for itself.
When a legislature selects a means of accomplishing an objective, the means selected typically emerges from a process of negotiation and compromise of competing and often totally contradictory values and principles. The legislative selection of means nearly always reflects this political process.
And how is that the slightest bit different from any other type of vote Congress takes? An act of Congress doesn't all of the sudden become constitutional just because it involved a lot of compromise.
Courts have a difficult time formulating principled standards by which to review the quality of legislative compromises.
I just gave them some in my previous posts. Would you care to evaluate them?
When courts begin devising means, it's not always a pretty picture.
They don't have to "devise" anything. All they have to do is make a determination as to whether Congress has exceeded its authority.
The adjective "activist" loses its disparaging tone when the noun that it is describing is changed from judge to legislator.
"Activist" officials are those who stray beyond their proper spheres of authority in order to impose their way of doing things on society. It can apply to judges or legislators. As for whether or not it's disparaging, I guess that's in the eye of the beholder.
I just don't think that it is unreasonable to interpret the word "enforce" in the Fifteenth Amendment to mean something broader than merely the power to forbid a violation of the Fifteenth Amendment.
Umm, that is what "enforce" means, dude.
I believe that the power to "enforce" the Fifteenth Amendment can be reasonably interpreted to include the power to make the ends of the Fifteenth Amendment a reality.
In post 119, I said, "The 15th amendment...does not say that Congress shall have the power to make sure that everyone gets a fair shake at being able to vote," to which you replied, "You're absolutely right to completely ignore what the Fifteenth Amendment doesn't say." But now it doesn't sound like you're completely ignoring what it doesn't say. And in either case, what you're saying now would create a loophole big enough for Congress to drive a truck through, not just when you apply it to this amendment, but to any law that Congress is given the power to enforce. They can simply name piece of legislation as being necessary to a particular object, no matter how tangentially it's associated with it. In the 2000 election controversy in Florida, some idiot was complaining that he was intimidated by the presence of police outside the poling station. No, they weren't harassing anybody or anything like that. Hell, they probably had just gone to vote themselves, but this guy felt he had a right to be "intimidated" by their presence. There's just no end to the silliness that could result.
In the last analysis, we have no choice but to rely on checks and balances to keep each of the branches in line.
I never said we shouldn't; it certainly would make it much more difficult for the courts to keep the other branches of government in line if they weren't aligned against each other from the outset. But we can't rely exclusively on divisions between branches of government for upholding the law. One of those branches needs to be vested with the authority of applying the law, and needs to be expected to do its job, properly.
What’s more important is to understand the structural and institutional reasons (the lack of clear textual support for judicial review and the difficulty of formulating consistent, principled judicial standards for “judging” the propriety of inherently political decisions) that might account for the Supreme Court’s tendency to exercise a lot of self-restraint in this area.
Those aren't the reasons judges don't get involved. If you notice, the courts very seldom restrain Congress in any meaningful way (either as to "means" or to "ends"), but are plenty eager to push states around. They certainly don't seem to have any issue whatsoever with "'judging' the propriety of inherently political decisions" that are made in state capitals, despite the utter and complete lack of textual support and principled judicial standards for determining "compelling government interest". Which is strange when you consider that the Constitution places far greater restriction on Congress than on the states.
I didn't mean for you to have to take my word for the reasons courts have exercised self-restraint when it comes to reviewing the means selected by Congress. Consider this language from McCulloch v. Maryland (1819):
"Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power."
It's unclear to me why you feel that Congress lacked the power to suspend literacy tests in order to enforce the Fifteenth Amendment.
1) Is it because you are interpreting the word "enforce" so narrowly that it would not encompass the suspension of literacy tests?
2) Is it because you simply reject the factual determination by Congress that suspension of the literacy tests was "necessary" to enforce the Fifteenth Amendment?
3) Is it because you feel that suspension of the literacy tests raised federalism issues because it unduly intruded into areas (voting procedures) historically regulated for the most part by states?
I think your information is a little old. This was back in the days when it was considered next to unthinkable for SCOTUS to strike down any act of Congress at all (even though Marshall reluctantly allowed for the possibility). Yes they had done it once, but only in a case where the act ordered judges to do something that they themselves felt wasn't within their constitutional prerogatives, so Marbury vs. Madison, properly understood, was actually a case of judicial restraint, more than anything else. It wouldn't be until 1857 when SCOTUS would strike down another federal statute. Back then, many, as you pointed out, were of the opinion, however wrong, that the courts simply did not have that power. Nowadays, no such opinion would be taken seriously.
Also, in 1819, the courts weren't anywhere near as prolific and arbitrary in striking at state actions, and the phrase "compelling government interest" had not yet seen the light of day. My point stands that it would be totally inconsistent of the courts to have the attitude they have today towards the states, but continually walk on eggshells with regard to congressional actions.
Is it because you are interpreting the word "enforce" so narrowly that it would not encompass the suspension of literacy tests?
Enforcement does not encompass new general prohibitions on behavior, period.
Is it because you simply reject the factual determination by Congress that suspension of the literacy tests was "necessary" to enforce the Fifteenth Amendment?
I reject a priori the notion that one needs to prohibit additional activities in order to enforce existing prohibitions. There are time-honored procedures in place for enforcing laws, and for upping the ante when existing policies are ineffective at curbing violations. All Congress needs to do is follow them. Anything else is not necessary, and certainly not proper.
Is it because you feel that suspension of the literacy tests raised federalism issues because it unduly intruded into areas (voting procedures) historically regulated for the most part by states?
I think I'd be making the issue more complicated than it needs to be by framing it in those terms. It's because it involves Congress assuming new powers not granted to it, not merely adjuncts to existing powers. And because the line needs to be drawn somewhere, otherwise it would make meaningless the notion of a federal government with limited powers. They could justify any action as being necessary to the exercise of a particular granted power.
Actually, the reason that I quoted Chief Justice Marshall was to assure you that there is nothing new about the Court's usual deference to Congress's selection of means. I just didn't want you to think that this practice began with Jackson, Lincoln, Wilson or FDR. I provided a more recent example in post 137 in the form of the following quote from South Carolina v. Katzenbach:
“We therefore reject South Carolina's argument that Congress may appropriately do no more than to forbid violations of the Fifteenth Amendment in general terms - that the task of fashioning specific remedies or of applying them to particular localities must necessarily be left entirely to the courts. Congress is not circumscribed by any such artificial rules under 2 of the Fifteenth Amendment. In the oft-repeated words of Chief Justice Marshall, referring to another specific legislative authorization in the Constitution, ‘This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.’”
Also, in 1819, the courts weren't anywhere near as prolific and arbitrary in striking at state actions, and the phrase "compelling government interest" had not yet seen the light of day.
Typically, when the Court requires that Congress or a state demonstrate a "compelling governmental interest," it is because the Congress or a state has selected a means which is arguably prohibited by the Constitution. In those cases, the Court suspends its usual deference and requires that the Congress or a state demonstrate that its action is necessary to further a "compelling governmental interest." A recent example concerned the University of Michigan's use of race/ethnicity as a criteria for admission to its law school. As this kind of "affirmative action/reverse discrimination" policy appears to conflict with a constitutional prohibition (the equal protection clause), the courts insist that a state demonstrate that its policy is necessary to the furtherance of a "compelling governmental interest." Otherwise, the court will rule that the policy/law is unconstitutional.
Enforcement does not encompass new general prohibitions on behavior, period.
I reject a priori the notion that one needs to prohibit additional activities in order to enforce existing prohibitions. There are time-honored procedures in place for enforcing laws, and for upping the ante when existing policies are ineffective at curbing violations. All Congress needs to do is follow them. Anything else is not necessary, and certainly not proper.
I read you loud and clear. You feel that Congress was not authorized to suspend literacy tests because suspension of the literacy tests involved "new general prohibitions on behavior" which are not described in Section 1 of the Fifteenth Amendment. Here are my problems with your approach:
First, from a factual standpoint, your attempt to distinguish between the literacy tests that were being used and the prohibition contained in Section 1 of the Fifteenth Amendment flies in the face of the congressional determination that the literacy tests in question were in fact nothing other than a racial test that is prohibited by the Fifteenth Amendment.
Second, since you have determined that Congress cannot employ "new general prohibitions on behavior" in order to "enforce" the Fifteenth Amendment, I assume that you would deem it to be improper for Congress to provide for any penalties to be imposed on individuals involved in the violation of the Fifteenth Amendment because the amendment prohibits only conduct engaged in by states and does not concern the conduct of individuals. If the Congress had accepted your limitation on its power to enforce the Fifteenth Amendment, what could it have done beyond passing legislation which merely reiterated that the states have a Fifteenth Amendment obligation? IOW, other than periodic legislative reminders to the states, what specifically do you have in mind when you refer to "upping the ante" that would not necessarily involve some "new prohibitions" beyond those contained in the amendment itself?
And because the line needs to be drawn somewhere, otherwise it would make meaningless the notion of a federal government with limited powers. They could justify any action as being necessary to the exercise of a particular granted power.
That was Jefferson's prediction about the consequences of interpreting “necessary” means to include merely “convenient” means:
“Suppose this were true: yet the Constitution allows only the means which are 'necessary,' not those which are merely 'convenient' for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to everyone, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed.”
The Supreme Court rejected Jefferson’s view. Unless a Congressional means violates some constitutional prohibition, the Court traditionally concerns itself with congressional means only to the extent of determining that there exists a rational relationship between the means selected and some legitimate congressional end.
“We therefore reject South Carolina's argument that Congress may appropriately do no more than to forbid violations of the Fifteenth Amendment in general terms - that the task of fashioning specific remedies or of applying them to particular localities must necessarily be left entirely to the courts...."
Except that doesn't answer the point I was making. I agree that the courts themselves shouldn't be fashioning local remedies, but they should be determining whether Congress' "remedies" violate the Constitution.
Typically, when the Court requires that Congress or a state demonstrate a "compelling governmental interest," it is because the Congress or a state has selected a means which is arguably prohibited by the Constitution.
Which makes it a bogus argument on the part of the courts, because if a state action were truly violative of any provision within the Constitution, no court would be asking the state if it had a good reason for violating it; it would simply pronounce the state in violation. "Compelling government interest" is just a ruse for when the courts don't have a solid argument against something, but still want to exert their control anyway; and it completely puts the lie to any claim that certain legislative matters are too involved for them to get into.
First, from a factual standpoint, your attempt to distinguish between the literacy tests that were being used and the prohibition contained in Section 1 of the Fifteenth Amendment flies in the face of the congressional determination that the literacy tests in question were in fact nothing other than a racial test that is prohibited by the Fifteenth Amendment.
A literacy test can never be a racial test, in and of itself; though it can be applied in a racially discriminatory manner, just as a gun can be fired for the right reason or for the wrong reason; but that doesn't mean that the gun is the problem, and it doesn't mean that literacy tests are the problem.
Second, since you have determined that Congress cannot employ "new general prohibitions on behavior" in order to "enforce" the Fifteenth Amendment, I assume that you would deem it to be improper for Congress to provide for any penalties to be imposed on individuals involved in the violation of the Fifteenth Amendment because the amendment prohibits only conduct engaged in by states and does not concern the conduct of individuals. If the Congress had accepted your limitation on its power to enforce the Fifteenth Amendment, what could it have done beyond passing legislation which merely reiterated that the states have a Fifteenth Amendment obligation? IOW, other than periodic legislative reminders to the states, what specifically do you have in mind when you refer to "upping the ante" that would not necessarily involve some "new prohibitions" beyond those contained in the amendment itself?
No, it is not improper for Congress to punish individuals who are exercising the power of the state. The principle of state sovereignty, which was well understood at the time of the adoption of the Constitution, means that it would be an improper exercise of Congress' power for them to attempt to punish states directly. This leaves them with no other choice, if they are to enforce prohibitions on states, to sanction those persons vested with the legal authority of the states, who use that authority in a manner that results in a violation of the law that Congress is empowered to enforce. It is clearly necessary (and note that I didn't have to hold any hearings or investigations to determine this, and neither does SCOTUS), and the only proper manner of enforcing laws against state actions.
Suppose the authorities of a particular state went ahead and dusted off someone they consider to be politically undesirable. This would seem to be a violation of the 14th-amendment prohibition against states depriving any person of life without due process of law. But how does that get enforced in a situation like this? The only viable option I can see is for federal authorities to arrest those officials responsible and put them on trial.
Unless a Congressional means violates some constitutional prohibition, the Court traditionally concerns itself with congressional means only to the extent of determining that there exists a rational relationship between the means selected and some legitimate congressional end.
Well, that completely ignores the "proper" part of "necessary and proper". I already mentioned the example of SUV's in DC. Another would be if Congress under its power of regulating interstate commerce were to prohibit trading certain items across state borders, and then decided to outlaw manufacturing of that item anywhere, so that federal authorities would no longer have to contend with having to deal with violations of the original prohibition. Maybe you think that's OK, too, but I can tell you that it's definitely not the arrangement that the states would say they signed up for in 1787. Hence it's propriety would be suspect, at best.
They do determine whether congressional remedies violate the Constitution, but only to the extent of determining that the remedies bear some rational relationship to a legitimate end and do not violate any express prohibition in the Constitution. Where the remedies (means) do appear to conflict with a constitutional prohibition, then the Court discards its rational relationship test and strictly scrutinizes the legislation to determine that it is necessary to further a “compelling governmental interest.”
Which makes it a bogus argument on the part of the courts, because if a state action were truly violative of any provision within the Constitution, no court would be asking the state if it had a good reason for violating it; it would simply pronounce the state in violation. "Compelling government interest" is just a ruse for when the courts don't have a solid argument against something, but still want to exert their control anyway; and it completely puts the lie to any claim that certain legislative matters are too involved for them to get into.
Actually, I think that the courts utilize the strict scrutiny/compelling governmental interest analysis to allow themselves an escape hatch when, for one reason or another, they want to avoid exerting their control. Usually, when Congress or the state has chosen a means which involves a constitutional prohibition and the Court applies a strict scrutiny/compelling governmental interest analysis, the statute fails the test and is doomed.
However, there are times, even when a legislative means clearly appears to involve a constitutional prohibition, that the Court may want to avoid declaring the means unconstitutional. Consider, for example, Korematsu v. United States (1944) 321 US 760 which concerned the propriety of the internment of American citizens of Japanese ancestry during World War II. The program obviously discriminated on the basis of race/ethnicity and incarcerated citizens without trial. If the Court’s policy were to automatically declare unconstitutional any means which violates a constitutional prohibition, the Court would have been compelled to declare the government’s internment policy utterly unconstitutional on its face. But the Court does not utilize such an automatic rule. Instead, it claims that the means will still be deemed constitutional if the means selected is necessary to further a compelling governmental interest. By use of this escape hatch, the Supreme Court was able to hold that it was constitutional, under the circumstances that existed during the war, for the Congress to incarcerate American citizens on the basis of their ethnicity without any hearings or trials. A very rare result.
A literacy test can never be a racial test, in and of itself; though it can be applied in a racially discriminatory manner, just as a gun can be fired for the right reason or for the wrong reason; but that doesn't mean that the gun is the problem, and it doesn't mean that literacy tests are the problem.
Well, if you choose to bind yourself by a state’s choice of names for its procedures, then I think that you have granted to the state the power to control all of your decisions when it comes to reviewing the constitutionality of their procedures. Neither the Supreme Court nor the Congress has ever been that accommodating. In the case of these particular literacy tests, the Congress found that they were racial tests which the states had simply labeled literacy tests. And the Court accepted that finding.
No, it is not improper for Congress to punish individuals who are exercising the power of the state.
If the Court were to accept your limitation – that the Congress has no power to create new prohibitions under Section 2 of the Fifteenth Amendment, I think that it could easily find that the suspension of literacy tests was more in keeping with the prohibition contained in Section 1 than would be legislation which would convert the Fifteenth Amendment into a weapon to be used against individuals rather than states.
Suppose the authorities of a particular state went ahead and dusted off someone they consider to be politically undesirable. This would seem to be a violation of the 14th-amendment prohibition against states depriving any person of life without due process of law. But how does that get enforced in a situation like this? The only viable option I can see is for federal authorities to arrest those officials responsible and put them on trial.
It gets enforced because the Congress and the Court do not recognize any limitation to the effect that congressional enforcement contain no new prohibitions. The Court permits the Congress to select any means rationally related to its power to “enforce” the provisions of the Fourteenth Amendment. This wide latitude has permitted the Congress to create criminal penalties (new prohibitions) that can be used against individuals who violate civil rights under color of state authority.
Well, that completely ignores the "proper" part of "necessary and proper". I already mentioned the example of SUV's in DC. Another would be if Congress under its power of regulating interstate commerce were to prohibit trading certain items across state borders, and then decided to outlaw manufacturing of that item anywhere, so that federal authorities would no longer have to contend with having to deal with violations of the original prohibition. Maybe you think that's OK, too, but I can tell you that it's definitely not the arrangement that the states would say they signed up for in 1787. Hence it's propriety would be suspect, at best.
You’re probably not going to be happy to learn that the Supreme Court applies to Congress’s power to regulate commerce the same standard that it applies to Congress’s power under Section 2 of the Fifteenth Amendment. For the most part, the Court just doesn’t get involved. If Congress decides to prospectively ban SUV’s on a nationwide basis and the Supreme Court is asked to rule that the ban is unconstitutional, don’t be afraid to bet on the Congress. All that Congress would have to do is to demonstrate that banning SUV's is in some way rationally related to the exercise of any of its express powers.
Elections are very important.
Okay, now that I've drained you of all optimism for our future, see if you can find some rays of hope in United States v. Morrison (2000). And don't just read the part about congressional power under the commerce clause. Read also about congressional power to enforce the Fourteenth Amendment.
Tell me if you think the Court is really going anywhere here.
No, it's more like, the courts come up with ridiculously expansive interpretations of certain constitutional prohibitions, which would be totally unworkable if applied consistently, and then try to cover their sorry behinds by saying, "but if you can come up with a good reason for violating it..." wink, wink, nudge, nudge.... If they find themselves applying a "compelling government interest" test to state legislation, it's a pretty safe bet that they've gone overboard in the first place. True constitutional prohibitions apply to actions regardless of how "compelling" someone considers them to be. And if it's not prohibited, then to judge the compellingness of a particular interest, to use Judge Marshall's words, "would be to pass the line which circumscribes the judicial department, and to tread on legislative ground," far moreso than setting clear limits on the exercise of the N&P clause would do.
Well, if you choose to bind yourself by a state’s choice of names for its procedures, then I think that you have granted to the state the power to control all of your decisions when it comes to reviewing the constitutionality of their procedures. Neither the Supreme Court nor the Congress has ever been that accommodating. In the case of these particular literacy tests, the Congress found that they were racial tests which the states had simply labeled literacy tests. And the Court accepted that finding.
Let's be clear on something. The tests in question were in fact literacy tests, but ones that were being inequitably applied. If they weren't literacy tests at all, then Congress' prohibition of literacy tests would be absolutely meaningless.
If the Court were to accept your limitation – that the Congress has no power to create new prohibitions under Section 2 of the Fifteenth Amendment, I think that it could easily find that the suspension of literacy tests was more in keeping with the prohibition contained in Section 1 than would be legislation which would convert the Fifteenth Amendment into a weapon to be used against individuals rather than states.
Punishing individuals for abusing the authority granted them by the state does not create a new prohibition, and it is certainly necessary and quite proper for enforcing existing prohibitions against states. Really, I don't see how you can possibly classify this as a new prohibition. What is anyone newly prohibited from doing, that the 15th amendment doesn't already prohibit? What I'm describing is a way of making sure they feel some consequences for doing what is already prohibited, in other words, ENFORCING the prohibition, exactly as the 15th authorizes Congress to do.
You’re probably not going to be happy to learn that the Supreme Court applies to Congress’s power to regulate commerce the same standard that it applies to Congress’s power under Section 2 of the Fifteenth Amendment.
Yeah, I know. That's why I tagged on that last little line about how even thought that might be considered OK, it still flagrantly violates the spririt of the Constitution, and really the letter as well. The states did not agree to be subjected to a federal government with the power to regulate every aspect of their economic affairs under the color of regulating interstate commerce. Not even the most federalist of the states would have ever signed up for anything like that.
All that Congress would have to do is to demonstrate that banning SUV's is in some way rationally related to the exercise of any of its express powers.
It's actually worse than that. Simply saying that a particular activity "affects" interstate commerce is enough for Congress to clain a power to regulate it - even though the Constitution only gives it the power to regulate interstate commerce itself, not anything that might affect it. The case that you linked to in your following post (which I'll comment more on below), while it does make some long-overdue statements of the obvious - WRT what does and does not affect interstate commerce - still shows no sign of shaking off the notion that it doesn't matter whether it affects it or not.
Tell me if you think the Court is really going anywhere here.
Well, as it concerns the 14th amendment, it simply seems to be saying that it applies only to the actions of states, not private individuals, which seems pretty self-evident to me. I don't think it represents, in and of itself, any profound shift in the way the court renders decisions. I think the most that can be said is that it's indicative that the court system is finally getting around to digging up some of the most outrageous excesses of Congress' powers, not necessarily because of some ideological evolution, but because, when there's so much legislative B.S. out there, it simply takes time to find it all and correct it. Somebody has to be prosecuted (or sued) pursuant to that law, and then it has to occur to the defendant that it's unconstitutional, and then he has to make his way through the maze of yes-men judges that the establishment puts in his way, etc., etc., before he can finally have the attention of a court which, when under the national spotlight, feels compelled to state the obvious.
I should also say that I feel bad for the girl in this case, that her assailants should seemingly be able to get away with their crime, but I lay the blame for that squarely on the shoulders of Congress, for sticking their fingers in places they knew they didn't belong.
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