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.