While perhaps not as “unique” as the Westboro Baptist brief in Windsor described by Jason below, the brief Constitutional Accountability Center filed on behalf of scholars including Jack Balkin in Shelby County v. Holder, does present the Court with a uniquely comprehensive account of the Enforcement Clauses of the Reconstruction Amendments that I thought would be of interest to the readers of this blog. The brief, which is available here and is signed by Jack as well as Professors Guy-Uriel Charles, Luis Fuentes-Rohwer, and Adam Winkler, analyzes the text and history of the Enforcement Clause of the Thirteenth, Fourteenth, and Fifteenth Amendments to show that the original meaning of the express grant of power to “enforce” by “appropriate legislation” gave Congress broad discretion to enact legislation to protect the Reconstruction Amendments’ new constitutional guarantees of freedom, fundamental rights and equality, and voting rights. This is the first time in modern Supreme Court history – and perhaps ever – that the Court has been presented with the text and history of all three of the Reconstruction Amendments. The payoff is a clear and comprehensive showing how the American people fundamentally altered the Constitution and the balance of federal-state power to give Congress the power to ensure that fundamental rights, like the right to vote, were actually enjoyed, and to prevent and deter state-sponsored discrimination.
As the brief demonstrates, the Thirteen, Fourteenth, and Fifteenth Amendments fit together like an interlocking puzzle with pieces that both stand alone and build off each other. The Reconstruction Amendments and their nearly identically worded Enforcement Clauses reflect the lessons of the antebellum period and the Civil War and significantly change the balance of power between the federal government and the states. Against the back drop of Dred Scott v. Sandford, the Framers chose language – “appropriate legislation” – intended to give Congress broad discretion to select the means to “enforce” the Constitution’s new guarantees of personal, individual rights. The Framers of the Reconstruction Amendments chose this language – words taken directly from Chief Justice Marshall’s foundational opinion in McCulloch v. Maryland sustaining the broad federal powers of Congress under Article I – because they were reluctant to leave the judiciary with sole responsibility for protecting against racial discrimination in voting and other constitutional violations. As the brief reflects, the scholarly work of the nation’s leading constitutional scholars on both the left and right – including Jack Balkin, Steven Calabresi, and Michael McConnell – demonstrate that the text, history, and original meaning of the Reconstruction Amendment give Congress broad power to enact prophylactic regulation to protect the constitutional rights guaranteed by the Reconstruction Amendments.
The history of the three Amendments fit tightly together. Indeed, each subsequent Amendment built off the experience of Congress in trying to enforce the Constitution in the face of continuing discrimination by recalcitrant southern states. The Thirteenth Amendment, for the first time in the Constitution’s history, gave Congress the express power to enforce the Constitution’s promise of freedom. Debates over Congress’ first attempt to enact landmark civil rights legislation to enforce the Thirteenth Amendment, the Civil Rights Act of 1866, led to the passage of the Fourteenth Amendment, which armed Congress with new powers to protect fundamental rights and equality under the law for all persons. Culminating this historical progression, the Fifteenth Amendment’s plain language and history demonstrates that Congress, not the courts and certainly not the states, was being given sweeping powers to stamp out every conceivable attempt by the states to deny the franchise on account of race. Given this history, the Fifteenth Amendment’s focused mandate, and the overwhelming evidence of the intended role of Congress, the Supreme Court’s deference to Congress should be at its apex in reviewing legislation designed to prevent and deter racial discrimination in voting prohibited by the Fifteenth Amendment.
The central question in Shelby County is whether the Court’s conservative Justices will follow this text and history or try to subvert it. Shelby County argues that the preclearance requirement of the Voting Rights Act and its associated coverage are outdated and necessary, and hence unconstitutional, but Congress, using the express powers specifically granted in the Constitution, disagreed. By an overwhelming margin – 98-0 in the Senate and 390-33 in the House – bipartisan majorities agreed that the preclearance provision of the historic Voting Rights Act continued to serve the critical purpose of preventing and deterring racial discrimination in voting that persist in the covered jurisdictions. As the comprehensive opinions below demonstrate, Congress had ample basis for maintaining Section 5 as a bulwark against current and ongoing state-sponsored racial discrimination in voting concentrated in the covered jurisdictions. Pursuant to the original understanding of the Fifteenth Amendment’s Enforcement Clause – that Congress would have broad power to determine what is appropriate to protect the right to vote free from racial discrimination – the Court should defer to Congress’s near-unanimous judgment.
David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Shelby County. This post is being cross-posted at Text and History.