The Civil War and Constitutional Change

Joey Fishkin has put up “The Dignity of the South,” an elegantly-written essay on the constitutionality of the Voting Rights Act. Fishkin argues, essentially, that the equal-dignity arguments against the Act hark back to the Dunning School’s dim view of Reconstruction, which in turn rely on antebellum notions of state sovereignty that have been extinguished– as a legal matter– by the Civil War and Reconstruction.

I am not sure that there ever was an equal-dignity principle that would apply to the Act. (The Court’s opinion in Northwest Austin, by the way, never uses the word “dignity.”) But if there was one, as a legal matter, I am not so sure that the Civil War and its aftermath should be understood to delete it. The constitutional consequences of the Civil War and Reconstruction are a complicated thing, but at a minimum I think there is serious force to the following view:

[F]or the Civil War’s victors, legal continuity was generally a key part of the narrative of the Civil War and Reconstruction. President Lincoln had
justified the war by arguing that the states had never left the Union. Even the Reconstruction governments preserved a fiction of legal continuity with future and subsequent regimes. To be sure, there were plenty of radicals who argued that secession justified a major break in the legal order, but their views were frequently marginalized in practice, for better or worse. There is thus a case for seeing Civil War-era constitutional change strictly in formal or technical terms.

William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738, 1813 (2013).

Necessity and Propriety

I assume that every budding academic has a system for keeping track of paper ideas, since it takes far more time to execute papers than it does to conceive them.  Mine is a giant, disorganized text file of half-eaten outlines and mysterious questions and citations.  Even the text itself is a mess at this point, having been converted frequently and badly between various PC text readers and the excellent if uncooperative iOS Plaintext App.  I can’t even figure out whether to keep pouring ideas into the document (which I can’t read half the time) or start over.

If I were starting over, the next two things I’d include are two articles on the Necessary and Proper Clause, something I’ve been thinking about increasingly as I finish my forthcoming article, Rethinking The Federal Eminent Domain Power.  One article, “(Groping) Toward A Theory of The Necessary and Proper Clause,” would try to explain why the time is increasingly ripe for something like my historically-inflected theory of the Necessary and Proper Clause, and would try to provide the basic framework for operationalizing that theory.  The other, “Necessary and Proper Step Zero” would address the anterior question of when a claimed federal authority requires the implied powers of the Necessary and Proper Clause at all, and when it is part of the explicitly enumerated powers– a question that seems to be the crux of the disagreement between Ernie Young and his critics.

The Not-So-Obvious Constitutionality of the Voting Rights Act

I do not have strong feelings about how the Court ought to rule in Shelby County v. Holder. The case seems to me to present several genuinely hard empirical, historical, and legal questions. That said, I have heard several claims in defense of the Act that seem unproven.

1: The text and history of the 14th and 15th Amendment obviously support the constitutionality of the Act.

Maybe. The amendments protect against some measure of voting discrimination, and then give Congress the power to “enforce” those provisions through “appropriate” legislation. There is also some reason to believe that “appropriate” was understood somewhat broadly, parallel to the Congressional discretion authorized by McCulloch v. Maryland. But that doesn’t really answer the question. One might have to figure out what rights are actually protected by Section One of the Fifteenth Amendment, to what extent Congress has discretion to define that category of rights more broadly than the Court has, to what degree “enforce[ment]” of those rights allows Congress to suspend or forbid laws that do not themselves violate Section One, and what kinds of legislation, if any, would be in”appropriate” even under the McCulloch standard.

On the third of these questions, the meaning of “enforce,” Justice Scalia has written:

One does not, within any normal meaning of the term, ‘enforce’ a prohibition by issuing a still broader prohibition directed to the same end. One does not, for example, ‘enforce’ a 55-mile-per-hour speed limit by imposing a 45-mile-per-hour speed limit–even though that is indeed directed to the same end of automotive safety and will undoubtedly result in many fewer violations of the 55-mile-per-hour limit. … Nothing in §5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or ‘remedy’ conduct that does not itself violate any provision of the Fourteenth Amendment. So-called ‘prophylactic legislation’ is reinforcement rather than enforcement.

It may well be that upon careful examination, the best reading of the text and original history do justify the Act. But the relevant terms are not self-defining, and the (true) proposition that Congress’s authority was broad does not tell us how broad.

2: The Civil War and Reconstruction justify the Act.

One characteristically forceful and creative version of this argument comes from Akhil Amar, who argues that Section 5’s preclearance requirement is legitimate because the former Confederate states were subjected to a form of preclearance during Reconstruction. Indeed, the rebelling states were forced to ratify the 14th Amendment before they were readmitted to full representation in Congress. (Those who’ve read Amar’s newest book will recognize this as an argument from the Unwritten “Enacted Constitution.”)

I think this is a good explanation for South Carolina v. Katzenbach, which upheld the original 1965 Voting Rights Act. (Indeed, this helps to explain why the repeated invocations of Founding-era history in Hugo Black’s Katzenbach dissent sound so off.) But skeptics of the 2006 extension of the Act could also make use of the Reconstruction analogy. Suppose that Reconstruction had taken place in the wrong states, or that Reconstruction had continued for fifty years, and it was now hotly debated whether there was any continuing need for it. Skeptics of the Act might well suggest that at that point, the original Reconstruction power would provide only slim support for continued federal supervision.

3: It’s Congress’s job to decide who is covered.

Again, that may well be. But one must figure out what degree of deference is due (absolute?). In any case, I see a tension between the proposition, “Congress has more expertise and legitimacy than the Court does in deciding which states ought to be covered,” and the proposition, “a decision invalidating only the coverage formula is functionally the end of the VRA because Congress will never be able to agree on a new one.”

Now it may well be that the best and most lawful course is for the Court to uphold the Act out of deference to Congress, even if some members of the Court have concerns about whether the coverage formula has been taken seriously. (It may also be that those concerns ultimately lack merit.) But I do wonder what John Hart Ely would say if he were here.