Shelby County v. Holder: The original understanding of Congress’s enforcement powers

Shelby County v. Holder, one tiny Alabama county’s monumental challenge to the constitutionality of the Voting Rights Act’s “preclearance” requirement, forces the Court to grapple directly with some fundamental questions about the scope of Congress’s authority to enforce by “appropriate legislation” the constitutional guarantees in the Fourteenth and Fifteenth Amendments.  What exactly counts as “appropriate” legislation to combat violations of the Fourteenth and Fifteenth Amendments?  What degree of “fit” is necessary between Congress’s legislative methods and the constitutional evils it is attempting to combat?  To how much deference is Congress entitled in determining that a problem exists?  And does Congress’s power ebb and flow such that the legislative protections it decides to impose, even if justified at the outset to combat real constitutional violations, may become excessively burdensome when a once-recalcitrant jurisdiction truly changes its ways?

Researchers at the Constitutional Sources Project, ConSource, the nation’s leading free online resource on U.S. constitutional history, teamed up with a talented group of Harvard Law School students to seek answers to these vexing questions by consulting those who ought to know best — the framers of the Reconstruction Amendments themselves.  ConSource has prepared a report based on its investigation, Shelby County v. Holder: An Historical Exploration of the Fifteenth Amendment and its Enforcement Power, which collects and examines available primary constitutional materials on the scope of Congress’s enforcement powers.

The project unearthed a multitude of sources on the Reconstruction Amendments that directly address what members of the Reconstruction Congress thought about Congress’s enforcement authority.  Unfortunately, the sources do not produce any easy answers — these Reconstruction-era framers disputed the extent of Congress’s enforcement authority just as we do today.  Nevertheless, the project unearthed many fascinating details that will lend some support to both sides in the Shelby County case.

For example, supporters of Section 5’s constitutionality will find many friends among the Radical Republicans who dominated Reconstruction efforts and steered enactment of the Thirteenth, Fourteenth, and Fifteenth Amendments.  Senator John Pool, a Republican from North Carolina, drew upon his own experience as a Southerner who witnessed directly the terrors and atrocities committed against former slaves in Southern states.  He argued that robust congressional action was essential to protect newly freed citizens against real and obvious dangers, and lay “at the very foundation of all that has been done” in Reconstruction.

During the debate over the language of the Reconstruction Amendments themselves, several Congressmen suggested that they anticipated Congress’s enforcement authority would be exceptionally broad.  They illustrated this belief by analogy to Congress’s “Necessary and Proper” power, quoting Justice Marshall from McCulloch v. Maryland – “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 . . . are constitutional.”  Following Justice Marshall’s template, Representative Hale, Republican of Iowa, argued that because the legitimate “end” of Congress’s enforcement authority was “the maintenance of freedom to the citizen,” “[a]nything which protects [the freedman] in the possession of these rights” was a proper exercise of enforcement power because it “insures him against reduction to slavery.”  To Hale, Congress would be given wide latitude in the manner in which it addressed constitutional violations — there could be a great deal of play in the joints between means and ends.  And he went on to suggest that Congress should be given similar deference in identifying the constitutional violations it sought to combat: “Of the necessity of the measure, Congress is the sole judge.”

Further, for some congressional Republicans, Congress’s enforcement power was clearly not meant to ebb or flow with the extent of the evil it was combating.  Quite to the contrary, to many Republicans, the very purpose for enacting the Fifteenth Amendment was to allow Congress to exact permanent changes in the voting laws of the Southern states.  Before enactment of the Fifteenth Amendment, Congress demanded that rebel states remove race-based voting laws as a condition to being readmitted to the Union.  Many Reconstruction-era Republicans believed that Congress was empowered to enact such legislation even without a suffrage amendment.  They believed that Congress’s existing powers, including those in Article I, Section 4 — the Elections Clause (allowing Congress to determine the “time, place and manner” for conducting elections) and the Republican Guarantee Clause (guaranteeing “to every State in this Union a Republican Form of Government”) — granted Congress power to force substantive changes in state voting laws. 

But Congress also went further.  It also demanded that the readmitted states permanently promise not to amend their constitutions to reinstitute race-based voting restrictions.  A faction in the Reconstruction Congress, led by John Bingham, worried that Congress, under its then-existing powers, could not demand such permanent changes to state laws — changes that would prohibit future generations of state citizens from amending their own democratically enacted constitutions.  This led them to push for the Fifteenth Amendment, which they anticipated would give Congress a separatesupervisory authority over state elections laws in perpetuity.

This is not to say that the debate was entirely one-sided.  Opponents of Section 5 will find equal support from a great number of Southern Democrats, many of whom argued for very narrow readings of Congress’s enforcement power — far more narrow, in fact, than those raised by Shelby County.  Some, like Senator William T. Hamilton of Maryland, advanced the extreme view that Congress’s enforcement authority was confined to jurisdictions over which Congress already enjoyed plenary authority: the Territories and the District of Columbia.  Others, like Senator George Vickers of Maryland, made more moderate arguments consonant with the arguments made by Shelby County today.  Vickers argued that Congress’s enforcement power was a “latent one,” that could be exercised only to remedy actual, demonstrable violations of constitutional rights, and then “only to the extent of securing the elective franchise to” those people who had been unlawfully deprived of it.  And Southern Democrats were united in their concern that Congress’s enforcement power had to be interpreted narrowly to prevent completely upsetting the balance of power between the federal and state governments.

But narrow readings of Section 5 were not merely confined to the representatives from Southern states — a distinct minority who only ratified the Reconstruction Amendments at the tip of a Union bayonet.  They found allies in a number of moderate Republicans who also expressed concern at granting Congress too much power over the traditionally state-controlled matter of conducting elections.   Representative Hale of New York, for example, counseled restraint in crafting the Reconstruction Amendments:  “I believe the tendency in this country has been from the first too much toward the accumulation and strengthening of central Federal power. . . .  I submit to gentlemen whether it is not now time that we should check that current.” 

And one can detect direct parallels to Shelby County’s arguments from comments by Senator Daniel Pratt, Republican of Ohio, who probably spoke for a majority of moderate Republicans when he argued that while Congress should have broad enforcement authority, that authority was not unlimited, and that the definition of “appropriate legislation” would vary based on the circumstances and the methods employed by Congress should be “exactly adapted to the existing evils in the South.”

The debate, it seems, that is taking place today at the Court over Congress’s enforcement authority is simply the latest chapter in a much longer debate that has taken place from the very creation of that power.  That may be frustrating to many.  We look to our past to find certainty, solidity, and wisdom.  But so often we find confusion and chaos, even about the meaning of our fundamental charter, and even from those who ought to have understood it best as they came together to create (or recreate) it.  But even though a review of our constitutional past can seldom, if ever, provide easy answers for the problems of our constitutional present, it is still a worthwhile enterprise. 

In fact, a review of ConSource’s report should be encouraging to the reader.  Within its pages you will find acidic, vitriolic, even furious terms of verbal warfare, conducted under a fog of fallen honor, rough justice, and blood retribution; the closing chapter of perhaps the most difficult and disgusting story of our American past.  Compare that to the discussion taking place both inside and outside the Court today.  It might at times be intemperate and politically charged, but it is downright stately by comparison to the debate on the same subject a century-and-a-half ago.  That is certainly cause for hope.

Carl Cecere is an appellate attorney at Hankinson LLP in Dallas, Texas, and a member of ConSource’s Legal Advisory Board.  For more information about ConSource’s research findings, please email ConSource’s Executive Director, Julie Silverbrook, at julie.silverbrook@consource.org.