Current validity of prophylactic 14th Amendment legislation

[John Noble]

My sense is that the five-year sunset was less significant to the scope of
legislative authority under sec. 2, than to the "inventive manner" by which
it was exercised. In part III of Katzenbach, the Court characterizes the
scope of legislative authority in terms which signify almost boundless
authority, citing McCulloch v Maryland -- "Let the end be legitimate...."
The five-year sunset becomes crucial in Part 4, where the Court turns to
the "inventive manner" by which the authority was exercised -- the AG's
unreviewable determination of coverage under sec. 4, the suspension of
existing literacy requirements without a judicial finding of purposeful
discrimination, and the presumed unconstitutionality of new voting laws
based only on historical constitutional violations. I think that
distinguishes VRA sec. 2, which is generally applicable, and requires a
judicial determination of the violation. The survival (so far) of the
perpetual prohibition against discriminatory effects, without regard to the
purposeful discrimination required for a constitutional violation, suggests
that the problem is not the scope of Congress' authority under the 15th
Amendment or prophylactic measures that go beyond purposeful violations of
the Constitution. Reno v. Bossie Parrish suggests that the Court's real
concern is the invasion of the judicial function to define, determine and
sanction constitutional violations by the selective imposition of
prophylactic measures. No?

John Noble


At 4:22 PM -0400 4/11/01, Sam Bagenstos wrote:
>Can't you reach the same result by focusing on legislative authority ab
>initio?  That is, if Section 5 of the Voting Rights Act had no expiration
>date, it would have exceeded congressional authority because facts would
>obviously change at some point.  (As Brian Landsberg notes, the temporary
>nature of the statute's application was a crucial part of the Court's
>decisions upholding Section 5 in South Carolina v. Katzenbach and City of
>Rome v. United States.)  So the crucial question would be whether the
>record of constitutional violations justified a prophylactic statute that
>extended as long into the future as did the statute at issue.  By this
>measure, the 1982 amendments to the Voting Rights Act have serious
>problems, because amended Section 2 lasts forever, and Section 5 was
>extended for 25 years (much longer than the 5- or 7-year extensions
>Congress had approved when it reenacted the Voting Rights Act in 1970 and
>1975).  Of course, by this measure the effects test under Title VII is out
>as 14th Amendment legislation as well.
>
>At 02:58 PM 04/11/2001 -0400, you wrote:
>>At 10:02 AM -0400 4/11/01, Mark Tushnet wrote:
>> >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.]
>>
>>An analysis that begins with the premise that the VRA was constitutionally
>>enacted in 1965, could only proceed to hold it unconstitutional on a
>>rationale that the diminished justification works a retroactive
>>diminishment of legislative authority, or one that implies a constitutional
>>duty to repeal legislation that was once, but no longer, within the
>>legislature's authority. If Garrett imposes an unseemly fact-finding burden
>>on the legislative process, this notion of evolving unconstitutionality
>>seems to impose a continuing burden on Congress to justify the laws that
>>are on the books -- a constitutionally mandated sunset clause. Garrett's
>>trial-like inquiry into congruence and proportionality becomes a cake-walk.
>>There is no "record" supporting the validity of the enactment today because
>>it wasn't enacted today. Moreover, the prophylactic legislation is
>>unconstitutional only on the assumption that the diminished justification
>>is owed to something other than compliance with the legislation. The law is
>>unconstitutional because nobody is breaking the law, and constitutional
>>only to the extent it is ineffective.
>>
>>I suppose you can save stare decisis (if only in principal, because every
>>adjudication is distinguishable -- that was then, this is now); but it
>>wrecks havoc on finality doctrines -- res judicata, collateral estoppel,
>>and even law of the case where courts retain jurisdiction to supervise
>>enforcement of injunctive relief. Miss the deadline on your notice of
>>appeal? Doesn't matter, you can just refile in district court tomorrow. Did
>>you waive the issue by failing to raise it below -- depends on whether the
>>VRA became unconstitutional before or after your Rule 59 motion was due.
>>Didn't file a Rule 59 motion? Doesn't matter -- file under Rule 60(b). Rule
>>60(b) motion denied? File another. Dismissed with prejudice? Never mind --
>>new day, new case. Do we have to pin-point the date it became invalid, so
>>we can figure out whether the alleged conduct was legal or illegal when it
>>happened. Or does it matter -- does the current invalidity allow Tennessee
>>to go back to the pre-Carr district map. Oh, and if the VRA has become
>>unconstitutional because of the diminished warrant for its remedies, will
>>it become constitutional again if there's a resurgence of equal protection
>>violations (a rash of selective recounts in close presidential elections?).
>>
>>How can you square the Executive's obligation to enforce the law with a
>>notion of "springing" unconstitutionality. Can the A.G. announce tomorrow
>>that the VRA, in the view of the Department of Justice, is no longer
>>constitutional and will no longer be enforced. Can someone file suit
>>against DOJ for a declaratory judgment that the law IS constitutional. Does
>>the U.S. Attorney litigating a VRA case have to wake up every morning and
>>ask himself whether his ethical obligations require him to take a shower
>>and get to court or turn over and go back to sleep.
>>
>>I think the answer to your evidence question is that the relevant evidence
>>goes to legislative authority ab initio. The congruence and proportionality
>>test is far too vague, subjective and result-driven to begin with; but
>>unless it's a static test, measuring the remedy against the problem to
>>which it was addressed when it was enacted, it is worse than useless. A
>>dynamic test, implying the expansion and contraction of legislative
>>authority over time, the validity and invalidity of the same law from
>>year-to-year, if not day-to-day, means that the Constitution is amended by
>>circumstance. At the risk of sounding overly dramatic, that isn't "Law" --
>>it's the height of lawlessness.
>>
>>John Noble
>
>Samuel Bagenstos
>Assistant Professor of Law
>Harvard Law School
>Cambridge, MA  02138
>(617)495-9299 (voice)
>(509)351-9404 (fax)