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.