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.
No, it's more like, the courts come up with ridiculously expansive interpretations of certain constitutional prohibitions, which would be totally unworkable if applied consistently, and then try to cover their sorry behinds by saying, "but if you can come up with a good reason for violating it..." wink, wink, nudge, nudge.... If they find themselves applying a "compelling government interest" test to state legislation, it's a pretty safe bet that they've gone overboard in the first place. True constitutional prohibitions apply to actions regardless of how "compelling" someone considers them to be. And if it's not prohibited, then to judge the compellingness of a particular interest, to use Judge Marshall's words, "would be to pass the line which circumscribes the judicial department, and to tread on legislative ground," far moreso than setting clear limits on the exercise of the N&P clause would do.
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.
Let's be clear on something. The tests in question were in fact literacy tests, but ones that were being inequitably applied. If they weren't literacy tests at all, then Congress' prohibition of literacy tests would be absolutely meaningless.
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.
Punishing individuals for abusing the authority granted them by the state does not create a new prohibition, and it is certainly necessary and quite proper for enforcing existing prohibitions against states. Really, I don't see how you can possibly classify this as a new prohibition. What is anyone newly prohibited from doing, that the 15th amendment doesn't already prohibit? What I'm describing is a way of making sure they feel some consequences for doing what is already prohibited, in other words, ENFORCING the prohibition, exactly as the 15th authorizes Congress to do.
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.
Yeah, I know. That's why I tagged on that last little line about how even thought that might be considered OK, it still flagrantly violates the spririt of the Constitution, and really the letter as well. The states did not agree to be subjected to a federal government with the power to regulate every aspect of their economic affairs under the color of regulating interstate commerce. Not even the most federalist of the states would have ever signed up for anything like that.
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.
It's actually worse than that. Simply saying that a particular activity "affects" interstate commerce is enough for Congress to clain a power to regulate it - even though the Constitution only gives it the power to regulate interstate commerce itself, not anything that might affect it. The case that you linked to in your following post (which I'll comment more on below), while it does make some long-overdue statements of the obvious - WRT what does and does not affect interstate commerce - still shows no sign of shaking off the notion that it doesn't matter whether it affects it or not.
Tell me if you think the Court is really going anywhere here.
Well, as it concerns the 14th amendment, it simply seems to be saying that it applies only to the actions of states, not private individuals, which seems pretty self-evident to me. I don't think it represents, in and of itself, any profound shift in the way the court renders decisions. I think the most that can be said is that it's indicative that the court system is finally getting around to digging up some of the most outrageous excesses of Congress' powers, not necessarily because of some ideological evolution, but because, when there's so much legislative B.S. out there, it simply takes time to find it all and correct it. Somebody has to be prosecuted (or sued) pursuant to that law, and then it has to occur to the defendant that it's unconstitutional, and then he has to make his way through the maze of yes-men judges that the establishment puts in his way, etc., etc., before he can finally have the attention of a court which, when under the national spotlight, feels compelled to state the obvious.
I should also say that I feel bad for the girl in this case, that her assailants should seemingly be able to get away with their crime, but I lay the blame for that squarely on the shoulders of Congress, for sticking their fingers in places they knew they didn't belong.