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To: ned
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)

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.

169 posted on 06/08/2002 3:00:14 PM PDT by inquest
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To: inquest
I think your information is a little old.

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.

170 posted on 06/08/2002 9:34:37 PM PDT by ned
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