Current validity of prophylactic 14th Amendment legislation

[Sanford Levinson]

My take on this problem comes from my interest in the notion of "compelling
interest," a doctrine that, almost by definition, begins with the
assumption that some given state action is per se unconstitutional, but can
be saved if it demonstrates a "compelling interest."  The easiest
illustration is Brandenburg, which emphasizes the "imminence" of the
violence that is threatened as justifying the suppression of otherwise
protected speech.  So it would appear that when the threat vanishes, the
suppression once again becomes unconstitutional.  Now assume that the
Pentagon Papers case had gone the other way, because of the threat to vital
American interests while engaging in a shooting war.  It's now 2001, and
the Pentagon still keeps the Papers classified.  And Ellsberg II appears to
leak the documents.  Is there any plausible argument that their release
today would present the kind of threat that, arguendo, would have justified
suppression 30 years ago.

Now we turn to the federalism area.  If one takes the language of the
Supreme Court majority, protection of state autonomy is presumptively a
fundamental interest.  (Read, for example, O'Connor's preposterous language
in New York that suggests that even a national emergency wouldn't justify
"comandeering" state officials.)  So if we're going to allow incursions, it
should be because of contingent facts that make the national interest
compelling.  Such interests were amply present in 1964-65.  Do they exist
today, in a way that would satisfy the Supreme Court majority?  Perhaps in
Florida, given the systematic disenfranchisement of African Americans by
assuming, in effect, that African-American males are sufficiently likely to
be convicted felons that the state need not engage in careful winnowing of
the voting files.  But, generally, it's hard to make the case that
contemporary realities are comparable, so why should the "extreme" measures
of the Voting Rights Act (just read Hugo Black's dissent in Katzenbach v.
South Carolina) still apply.  Michael McConnell says that it's hard to tell
when states are using literacy tests properly, but the question is who
should have the burden of proof.  The current majority clearly trusts
states and puts a very high burden on those who are less charitable.

sandy