Josh Blackman is the latest scholar to sort of try to defend the Supreme Court’s evisceration of the Voting Rights Act. It shares something in common with every defense I’ve seen, including John Roberts’s — that is, it cannot identify any constitutional provision that the law violates, a rather serious problem given that the power being exercised by Congress was expressly delegated to it by the 15 Amendment. The defense, then, comes down to a vague structuralism and some highly contestable paeans to the glories of federalism:
Should we view the limitations on Article I grants and Reconstruction grants differently? Allow me to answer that question with another question. Why does the Court limit both of these powers? As I alluded to in this post, the answer is Federalism….
Federalism is not merely a means of preserving the relationship between the federal and state government. Federalism is an important structural protection to ensure that the states stand as bulwarks to preserve that freedom. The Tenth Amendment is not the only safeguard to ensure this dynamic is preserved. It is the overall structure of the Constitution.
So Blackman, at least, all but concedes that the 10th Amendment is irrelevant to this case, a good thing since it clearly is. The 10th Amendment just says that any powers not delegated to the federal government are reserved by the states; the 15th Amendment delegates powers to the federal government, so the 10th Amendment is beside the point. So what’s we’re dealing with here is a Seminole County-style structuralist argument : Roberts and Blackman are invoking the 10th Amendment “not so much for what it says, but for the presupposition which it confirms.” Now, I have no problem with structuralist arguments per se; for all the unjustified mockery of Douglas’s “penumbras and emanations” language the existence of some rights can indeed imply the existence of other rights.
But here, the structuralist argument runs into obvious immediate problems. What is it about the structure of the Reconstruction Amendments that implies a “congruence and proportionality” requirement? The preservation of “freedom”? Well, the freedom the states are seeking in this case is the “freedom” to discriminate in the allocation of the franchise. Not only is this “freedom” not structurally implicit in the 15th Amendment, it’s specifically the “freedom” the amendment sought to defeat. The framers of the 15th Amendment anticipated that leaving states the “freedom” to enforce voting rights without federal supervision would be a disaster, and the subsequent near-century of states being allowed the freedom and dignitude to enforce voting rights in the majesty of their sovereign powers proved the framers highly prescient. So, really, the argument is that we need extracosnstitutional standards to limit the reach the 15th Amendment, an argument that is both ahistorical and normatively unattractive. What value is there, exactly, in preserving the “freedom” of the states to discriminate in the allocation of the franchise? None that I can see, and certainly none that are reflected in the 15th Amendment.
Blackman continues with joining the recent conservative war against McColloch v. Maryland:
Structure means liberty. In addition to the 10th Amendment (the easy answer), among these guides are the doctrine of enumerated powers, which broadly reflects the view that Congress can’t do everything, no matter how important the goals are, and lacks a general police power. That, by itself, should be enough to justify limits on the Reconstruction powers. It wouldn’t make much sense if Congress had plenary powers according to the 14th Amendment to effect laws concerning race, but not plenary powers according to Art. I, s. 8 to effect laws concerning commerce. As the commerce clause has been reigned in, so have the Reconstruction Amendments.
Both are grants of power. Both are aimed at giving the Congress the power to solve problems that the state governments are incompetent to fix themselves. And both are limited. The scope of the limitations are up for debate. But asking if the means chosen are proportional to the ends being addressed does not seem that far out of line with how courts view other similar issues. To this, you may counter with Marshall in M’Culloch, “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” The word “appropriate” has to mean something. In fact, the word “appropriate” is right there in Section 5 of the 14th Amendment. ”The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Does appropriate mean “rational”? Does appropriate mean “proportional”? I’ll leave that question asides. But the notion that the Reconstruction Amendments provide plenary grants doesn’t necessarily follow.
Well, first of all, I don’t see any good reason to smuggle some kind of narrow tailoring requirement into commerce powers jurisprudence; McCulloch works perfectly well and the alternatives don’t. To try to leave it to the courts to determine when rational federal actions are “inappropriate” is an unnecessary license for political mischief. As a correspondent pointed out to me, I should have made this point when I was making fun of Ann Althouse celebrating Roberts’s made-up “equal sovereignty of the states doctrine” not by defending it (and, hey, if the Chief Justice doesn’t have to why should she?) by getting excited about all the legislation she doesn’t like that the Supreme Court could strike down, like the Cornhusker Kickback. But here’s the thing: the political checks on the commerce power worked in that case. The kickback, despite the ongoing obsession of conservatives like Althouse and Scalia have with it, was stripped out by House Democrats, by which time even Nelson had repudiated it. As Madison recognized, legislative veto points are a very effective check on the power of Congress. The Cornhusker kickback is a good argument against making the Supreme Court a policy censor, not in favor of it.
But even if I bought the argument as applied to the commerce power, to try to apply it to the Reconstruction Amendments is bizarre. In the abstract, I can at least understand the argument that a broadly construed commerce and spending power gives Congress something like a general police power (although, for the reasons stated above, I don’t believe it has this effect in practice.) But the idea that the 15th Amendment will become a general federal police power unless the courts apply arbitrary additional limits is, frankly, absurd. Even a rationality requirement certainly entails that to be an enforcement of the 15th Amendment federal legislation has to be related to voting. Even I would cheerfully concede that the ACA could not be justified as an exercise of the 15th Amendment enforcement power. Giving Congress plenary power to enforce voting rights does not even in theory lead to some kind of slippery slope to unlimited federal power.
Shelby County does not preserve any “freedom” for the states that the Constitution actually protects. It reflects a general hostility to federal enforcement of civil rights by the contemporary Republican Party, nothing more.