Current validity of prophylactic 14th Amendment legislation

Michael McConnell mcconnellm at LAW.UTAH.EDU
Wed Apr 11 09:35:38 PDT 2001

I could be mistaken -- and like Mark, I would like to hear the views of
others on this issue -- but I do not think the question for Section Five
purposes is the solely, or even primarily, the extent of violations (either
in the past or at present). The rationale of the Voting Rights Act was that
literacy tests, while not unconstitutional on their fact, are highly
susceptible to use in unconstitutional ways (meaning intentionally
discriminatory ways). That was true in 1965, as we know from actual
historical experience; but it remains true today. The point in Garret
(whether you agree with it or not) is that failure to make accommodations
for the handicapped, while perhaps reprehensible, is not unconstitutional
(just as failure to make accommodations for free exercise was held not to be
unconstitutional in Smith -- hence Boerne). Even more controversially, the
Court believes that discrimination against the handicapped generally has a
rational basis, and thus -- however reprehensible -- is not
unconstitutional. These are conceptual points, not empirical points. Thus, I
put forward the tentative thesis that the dimunition in violations is

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112

-----Original Message-----
From: Mark Tushnet [mailto:tushnet at LAW.GEORGETOWN.EDU]
Sent: Wednesday, April 11, 2001 8:03 AM
Subject: Current validity of prophylactic 14th Amendment legislation

The Court's current position is that in 1965 there was abundant evidence
of direct violations of the 14th and 15th amendment with respect to
voting, supporting the enactment of the prophylactic Voting Rights Act,
which prohibits practices that do not themselves violate the
Constitution.  An earlier thread raised the question (although I don't
think any clear resolution occurred), Is the Voting Rights Act
unconstitutional *today* if it could be shown that direct constitutional
violations had diminished to the point where the prophylactic provisions
were no longer congruent with and proportional to current violations?

Although I'd be interested in views on that question, my query here is
narrower, and procedural:  Should evidence supporting the proposition
that direct violations have diminished be admissible when a defendant
seeks to resist enforcement of a prophylactic provision?  Perhaps the
answer is parasitic on the answer to the underlying question:  Such
evidence is admissible, because relevant, but only if the Voting Rights
Act might be unconstitutional because of changed conditions.  [The
underlying question is whether the Court's doctrine has set up a
situation in which courts and legislatures have to operate in even more
closely analogous ways than the observations of the dissenters in
Garrett suggest.]

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