“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...."
Except that doesn't answer the point I was making. I agree that the courts themselves shouldn't be fashioning local remedies, but they should be determining whether Congress' "remedies" violate the Constitution.
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.
Which makes it a bogus argument on the part of the courts, because if a state action were truly violative of any provision within the Constitution, no court would be asking the state if it had a good reason for violating it; it would simply pronounce the state in violation. "Compelling government interest" is just a ruse for when the courts don't have a solid argument against something, but still want to exert their control anyway; and it completely puts the lie to any claim that certain legislative matters are too involved for them to get into.
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.
A literacy test can never be a racial test, in and of itself; though it can be applied in a racially discriminatory manner, just as a gun can be fired for the right reason or for the wrong reason; but that doesn't mean that the gun is the problem, and it doesn't mean that literacy tests are the problem.
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?
No, it is not improper for Congress to punish individuals who are exercising the power of the state. The principle of state sovereignty, which was well understood at the time of the adoption of the Constitution, means that it would be an improper exercise of Congress' power for them to attempt to punish states directly. This leaves them with no other choice, if they are to enforce prohibitions on states, to sanction those persons vested with the legal authority of the states, who use that authority in a manner that results in a violation of the law that Congress is empowered to enforce. It is clearly necessary (and note that I didn't have to hold any hearings or investigations to determine this, and neither does SCOTUS), and the only proper manner of enforcing laws against state actions.
Suppose the authorities of a particular state went ahead and dusted off someone they consider to be politically undesirable. This would seem to be a violation of the 14th-amendment prohibition against states depriving any person of life without due process of law. But how does that get enforced in a situation like this? The only viable option I can see is for federal authorities to arrest those officials responsible and put them on trial.
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.
Well, that completely ignores the "proper" part of "necessary and proper". I already mentioned the example of SUV's in DC. Another would be if Congress under its power of regulating interstate commerce were to prohibit trading certain items across state borders, and then decided to outlaw manufacturing of that item anywhere, so that federal authorities would no longer have to contend with having to deal with violations of the original prohibition. Maybe you think that's OK, too, but I can tell you that it's definitely not the arrangement that the states would say they signed up for in 1787. Hence it's propriety would be suspect, at best.
They do determine whether congressional remedies violate the Constitution, but only to the extent of determining that the remedies bear some rational relationship to a legitimate end and do not violate any express prohibition in the Constitution. Where the remedies (means) do appear to conflict with a constitutional prohibition, then the Court discards its rational relationship test and strictly scrutinizes the legislation to determine that it is necessary to further a “compelling governmental interest.”
Which makes it a bogus argument on the part of the courts, because if a state action were truly violative of any provision within the Constitution, no court would be asking the state if it had a good reason for violating it; it would simply pronounce the state in violation. "Compelling government interest" is just a ruse for when the courts don't have a solid argument against something, but still want to exert their control anyway; and it completely puts the lie to any claim that certain legislative matters are too involved for them to get into.
Actually, I think that the courts utilize the strict scrutiny/compelling governmental interest analysis to allow themselves an escape hatch when, for one reason or another, they want to avoid exerting their control. Usually, when Congress or the state has chosen a means which involves a constitutional prohibition and the Court applies a strict scrutiny/compelling governmental interest analysis, the statute fails the test and is doomed.
However, there are times, even when a legislative means clearly appears to involve a constitutional prohibition, that the Court may want to avoid declaring the means unconstitutional. Consider, for example, Korematsu v. United States (1944) 321 US 760 which concerned the propriety of the internment of American citizens of Japanese ancestry during World War II. The program obviously discriminated on the basis of race/ethnicity and incarcerated citizens without trial. If the Court’s policy were to automatically declare unconstitutional any means which violates a constitutional prohibition, the Court would have been compelled to declare the government’s internment policy utterly unconstitutional on its face. But the Court does not utilize such an automatic rule. Instead, it claims that the means will still be deemed constitutional if the means selected is necessary to further a compelling governmental interest. By use of this escape hatch, the Supreme Court was able to hold that it was constitutional, under the circumstances that existed during the war, for the Congress to incarcerate American citizens on the basis of their ethnicity without any hearings or trials. A very rare result.
A literacy test can never be a racial test, in and of itself; though it can be applied in a racially discriminatory manner, just as a gun can be fired for the right reason or for the wrong reason; but that doesn't mean that the gun is the problem, and it doesn't mean that literacy tests are the problem.
Well, if you choose to bind yourself by a state’s choice of names for its procedures, then I think that you have granted to the state the power to control all of your decisions when it comes to reviewing the constitutionality of their procedures. Neither the Supreme Court nor the Congress has ever been that accommodating. In the case of these particular literacy tests, the Congress found that they were racial tests which the states had simply labeled literacy tests. And the Court accepted that finding.
No, it is not improper for Congress to punish individuals who are exercising the power of the state.
If the Court were to accept your limitation – that the Congress has no power to create new prohibitions under Section 2 of the Fifteenth Amendment, I think that it could easily find that the suspension of literacy tests was more in keeping with the prohibition contained in Section 1 than would be legislation which would convert the Fifteenth Amendment into a weapon to be used against individuals rather than states.
Suppose the authorities of a particular state went ahead and dusted off someone they consider to be politically undesirable. This would seem to be a violation of the 14th-amendment prohibition against states depriving any person of life without due process of law. But how does that get enforced in a situation like this? The only viable option I can see is for federal authorities to arrest those officials responsible and put them on trial.
It gets enforced because the Congress and the Court do not recognize any limitation to the effect that congressional enforcement contain no new prohibitions. The Court permits the Congress to select any means rationally related to its power to “enforce” the provisions of the Fourteenth Amendment. This wide latitude has permitted the Congress to create criminal penalties (new prohibitions) that can be used against individuals who violate civil rights under color of state authority.
Well, that completely ignores the "proper" part of "necessary and proper". I already mentioned the example of SUV's in DC. Another would be if Congress under its power of regulating interstate commerce were to prohibit trading certain items across state borders, and then decided to outlaw manufacturing of that item anywhere, so that federal authorities would no longer have to contend with having to deal with violations of the original prohibition. Maybe you think that's OK, too, but I can tell you that it's definitely not the arrangement that the states would say they signed up for in 1787. Hence it's propriety would be suspect, at best.
You’re probably not going to be happy to learn that the Supreme Court applies to Congress’s power to regulate commerce the same standard that it applies to Congress’s power under Section 2 of the Fifteenth Amendment. For the most part, the Court just doesn’t get involved. If Congress decides to prospectively ban SUV’s on a nationwide basis and the Supreme Court is asked to rule that the ban is unconstitutional, don’t be afraid to bet on the Congress. All that Congress would have to do is to demonstrate that banning SUV's is in some way rationally related to the exercise of any of its express powers.
Elections are very important.
Okay, now that I've drained you of all optimism for our future, see if you can find some rays of hope in United States v. Morrison (2000). And don't just read the part about congressional power under the commerce clause. Read also about congressional power to enforce the Fourteenth Amendment.
Tell me if you think the Court is really going anywhere here.