Changing Facts and Sec. 5/compelling interest

[Mark Graber]

Professor Hamilton is, of course, right when she points out that changing facts should influence the interpretation of whether remedies are necessary under Section 5 of the 14th.  What Sandy is worried about is that the present Supreme Court might, mistakenly in both our views, conclude that certain Voting Rights Act remedies are no longer necessary.  But the case might be made that the Court can do this only because the political system is now convinced that Jim Crow was successfully remedied by about 1974ish, so that the Voting Rights Act could never pass today.  In short, the problem isn't simply the Court, it is the political regime of which the Court is a player.

Mark A. Graber(who admits this is a vast oversimplification)

>>> Hamilton02 at AOL.COM 03/01/01 09:20AM >>>
Sandy points out that changing facts will change conclusions about
constitutional violations under Sec. 5 and under the compelling interest
test.  I think that is exactly right, but don't see it as a negative aspect
of the doctrine.  The requirement in Florida Prepaid and Kimel and Garrett is
that the states' actions be "widespread and persisting."  So if the
discrimination being redressed is now being redressed by the states (see
language in Florida Prepaid), then a statute that would have been
constitutional when passed many years ago may be unconstitutional now.  Sandy
seems to be assuming that the power in Sec. 5 is the power to police the
states even when they are obeying the Constitution.  That is not textually
defensible.  Section 5 gives Congress the power to "enforce" the guarantees
of Section 1 against the states.  If the states are not violating those
guarantees,  no enforcement is needed.

Marci


Marci A. Hamilton
Visiting Professor of Law
New York University School of Law