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?