[EL] Legislative History of 15th Amendment and 65 Act

[Scott Rafferty]

> Near the end of
> yesterday's
> oral argument, Justice Sotomayor asked whether* City of Boern*e (applying
> the 14th amendment in non-racial context) or *City of Rome* (applying
> the
> 15th amendment) governs judicial review of legislation issued under the
> congressional enforcement power.   *City of Rome* held that the
> Reconstruction amendments "enlarged" congressional authority and made
> Congress, not the Courts, chiefly responsible for their enforcement.  With
> regard to
> these
> basic issues of institutional competence and justiciability, the history
> of the Reconstruction amendments and of the 1964-1965 Acts may be more
> relevant than the legislative record at the time of reauthorization, but
> the parties' briefs do not appear to address the
> bases for the prior legislation
> .   Justices Kennedy, Ginsberg, and Sotomayor relate the issue of
> congressional authority to the equal footing doctrine (the subject of J.
> Sotomayor's law school note), but this issue also isn't directly addressed
> in the principles' briefs.
>
> Even with regard to the 14th amendment, the legislative history shows the
> distrust of the judiciary as the basis for amending the constitution to
> extend congressional authority.    A century later, Chief Justice Warren
> insisted on judicial deference to this congressional primacy.   He sought
> to persuade the Johnson Administration that Congress, not the Court, should
> ban discrimination in public accommodations.    Warren delayed action in
> the Glen Echo sit-in (*Griffin v. MD*) because he believed that
> congressional action would be more legitimate - and that Congress'
> willingness to pass the law could be undercut if the Court were to decide
> the case.  Warren urged the President to move legislation quickly and
> repeatedly told SG Cox that the Court was evenly divided.  Yet, two days
> after the 64 Act passed, the Court voted 6-3.
>
> In 1869-71 and again in 1965, Congress even more clearly believed that it
> was assuming ultimate authority when it enforced the voting rights of
> Southern blacks.   Congress also had the specific goal of increasing the
> number of minorities elected (i.e., avoiding "dilution" of the overall
> minority vote), not (as Shelby Co. asserts) simply protecting the
> individual right from intentional discrimination.
>
> The two AAGs for civil rights during the period had reservations about the
> effect of the 64 and 65 Acts based on federalism, their political prudence,
> and their ability to survive judicial review.  Both assumed the application
> of the *Slaughter-House* (1873) and *Civil Rights Cases* (1883), if not *
> Cruikshank* (1876).  Both felt that public accommodations section should
> be based on the commerce clause, which at the time had only supported
> legislation whose direct focus was economic.  Cox and Erwin Griswold (Chair
> of the Civil Rights Commission) had a much broader view of congressional
> authority under the Reconstruction Amendments, and would have preferred to
> base the 64 Act on enforcement powers alone.    Initially a skeptic, Cox
> came to believe that the enforcement clause of the *13th* amendment was
> sufficient to support the 64 Act as it applied to blacks.  Griswold had
> been an early critic of the 57 and 60 Acts, urging a "wholesale" approach
> to enforcing black voting rights in the South.
>
> Distrust of the judiciary was also a key motivation for the 65 Act.
>  Congress used its enforcement power to SUPPLANT judicial determinations in
> litigation against Southern  jurisdictions in under the 57 and 60 Act.
> Preclearance had been unsuccessfully sought as a remedy in *U.S. v. La*.
> and became the model for section 5.   As Brian Landsberg notes in his
> excellent book, Harold Greene (head of the Appellate Section of the Civil
> Rights Division) was the primary architect of the VRA.   Greene argued that
> southern district judges made piecemeal litigation impractical.   In S.C.
> v. Katzenbach, the Supreme Court called these lawsuits "ponderous," noting
> evasion by the jurisdictions.  But the failure of litigation was primarily
> because southern district judges subverted it - an issue explicit in the
> legislative history.   (RFK even considered asking the ABA to censure one
> of the Kennedy appointees for racist comments made in a voting case.)  In a
> further restriction on judicial authority, the 65 Act eliminated the
> ability of judges to appoint federal examiners, transferring it to the AG.
>
>
> The 15th amendment was motivated by a congressional desire to elect
> blacks, not simply to protect individual voters.  The Republican Party
> viewed the election of blacks as essential to maintain its control of
> Congress.  The Enforcement Acts of 1870 and 1871 reflected a very broad
> view of Congressional power under the enforcement clause of the 14th
> Amendment, which the courts accepted (e.g., Ex parte Virginia) at least
> until *City of Boerne*.  Since Congress proposed the 15th amendment
> because of perceived inadequacy of the 14th to protect the right to vote,
> its enforcement clause may be even broader than the 14th - as suggested in
> J. Sotomayor's question.   Justice Harlan made the same point in his
> concurrence in *La. v. U.S*, decided two months before passage of the
> 1965 Act.
>
> In her law school note, Justice Sotomayor took a limited view of the
> constitutional basis for equal footing, but noting possible implications
> from the interpretation of federalism in *NLC v. Usery* (decided 3 years
> earlier).   *City of Rome *distinguished *Usery *the following year,
> holding that federal authority under the 15th Amendment was broader than
> under the commerce clause.  (Even as to commerce, *Usery *was overruled
> in 1985.)
>
>
> Scott Rafferty
> 1913 Whitecliff Ct
> Walnut Creek CA
>  mobile 202-380-5525
>
>
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