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Friday, June 28, 2013

Congressional Power and the Reconstruction Amendments

Some folks (e.g., over at Balkanization) have been criticizing Shelby County for ignoring the Reconstruction Amendments and focusing excessively on the antbellum Constitution. I entirely agree with the normative premise that it's a mistake to ignore Reconstruction. (This is one of the reasons that Hugo Black's dissent in Katzenbach sounds so off -- the Declaration of Independence and the writings of James Madison are not obviously relevant to a case about the 14th and 15th Amendments.)

And yet I'm not sure that it's actually a fair criticism of Shelby County, which does repeatedly refer to the Fifteenth Amendment. To be sure, the opinion also spends a surprising amount of time dwelling on some elements of the original Constitution, and especially McCulloch. But that may not actually be the same kind of mistake as Hugo Black's.

Much of the scholarship and historical briefing that has defended a very expansive view of Congress's enforcement authority under the Reconstruction amendments, relies on the way that the framers of the Reconstruction amendments wrapped themselves in the Supreme Court's broad interpretations of Congressional power in McCulloch and Prigg. (By the way, Akhil Amar's superb America's Constitution: A Biography scores its first SCOTUS citation in the Shelby County dissent.)

Yet even McCulloch had its limits, such as the "great substantive and independent powers" language I've written about, and the "letter and spirit" language the majority invokes. So by relying on McCulloch, the majority may actually be in the ballpark of the type of Congressional power and deference envisioned by the Reconstruction amendments. Now perhaps the majority should have talked about Reconstruction more than it did. But if it had, which side would that have helped?

Suppose that Reconstruction had taken place in the wrong states, or that Reconstruction had continued for fifty years, and that it was no longer clear whether there was any continuing need for it in the originally reconstructed states. Skeptics of the Act might well suggest that at that point, the original Reconstruction power would provide only slim support for continued federal supervision.


Posted by Will Baude on June 28, 2013 at 11:23 AM in Constitutional thoughts | Permalink


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I think Reconstruction itself (as opposed to the amendments passed while Southern legislatures were nearly nonfunctional) is so different from the VRA that it's not a useful comparison point. Despite the odd popularity of the view that the VRA only applies to the South and is some kind of post-bellum badge of shame (a view reinforced by Roberts's dicta*), according to the DoJ the original "covered jurisdictions" included Alaska in its entirety and parts of Arizona, Hawaii and Idaho. The 1970 reauthorization increased the number of non-Southern jurisdictions: California, Connecticut, Maine, Massachusetts, New Hampshire, New York, and Wyoming.

Moreover, there was an actual punitive aspect to Reconstruction -- a shaming and punishing of the rebel states -- that I don't think is present for the VRA, given that from its beginning it covered areas that were not particularly disfavored by the federal government. Nearly half of all states have at some point been at least partially covered.

I actually agree with Roberts that the old coverage formulas are out of date. Neither state where I've done Election Protection ever has been even partially covered, but Ohio has behaved badly about early and extended-hour voting in black areas, and Pennsylvania's voter ID law is a modern "test or device" restricting the opportunity to register and vote. But I suspect my preferred solution (pre-clearance for the entire country) is not the same as the Chief Justice's.

* "Things have changed in the South. ... That comparison reflected the different histories of the North and South. It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race."
While slavery concededly existed only in the South by the time of the Civil War, Jim Crow existed in many other places. Hence Brown v. Board of Education of Topeka Kansas.
Ginsburg also succumbs: "True, conditions in the South have impressively im­proved since passage of the Voting Rights Act."

Posted by: PG | Jun 28, 2013 6:08:02 PM

What parts of Reconstruction were about shaming the white south?

Posted by: AGR | Jun 28, 2013 7:01:03 PM

You concede too much.

In 1861, slavery was legal in Missouri, Kentucky, Maryland, Delaware, and D.C. New Jersey's gradual emancipation meant that there were still a few slaves there also. Even if Roberts doesn't care enough to be careful, the rest of us should recognize that slavery wasn't confined to the Confederacy. And Reconstruction didn't extend to the entire Confederacy. Tennesse was re-admitted in 1866, before the first Reconstruction Act.

Posted by: Reply | Jun 29, 2013 3:34:50 AM

"What parts of Reconstruction were about shaming the white south?"

Chief Justice Salmon P. Chase, appointed to the Supreme Court by Lincoln and considered a Radical during the Civil War for his opposition to slavery and support for black suffrage, on May 30, 1868 wrote to August Belmont: "Congress was right in not limiting, by its reconstruction acts, the right of suffrage to whites; but wrong in the exclusion from suffrage of certain classes of citizens and all unable to take its prescribed retrospective oath, and wrong also in the establishment of arbitrary military governments for the States and in authorizing military commissions for the trial of civilians in time of peace. There should have been as little military government as possible; no military commissions; no classes excluded from suffrage; and no oath except one of faithful obedience and support to the Constitution and laws, and of sincere attachment to the constitutional Government of the United States."

Posted by: PG | Jun 29, 2013 11:03:53 AM

Giving blacks the vote "shamed" the white south in the eyes of whites in the south. Treating black people with dignity would have shamed those people, too.

Posted by: AGR | Jun 29, 2013 3:11:15 PM

"Giving blacks the vote "shamed" the white south in the eyes of whites in the south. Treating black people with dignity would have shamed those people, too."

I'm not sure how much dignity you think African Americans were treated with in the North at that time, given that several states such as Maine, Rhode Island, Illinois, Ohio, etc. outlawed interracial marriage. But they generally were able to vote. However, so long as white people also were able to vote, rarely if ever would African Americans hold elective office anywhere that whites were a majority.

In contrast, the loss of the right to vote for *whites* that Chase criticizes (a critique you're thus far ignoring) is what enabled African Americans finally to achieve elected office -- they had become a voting majority without being the majority of the population. Note that in a list of African American firsts for the entire country, many of the political ones are in the Reconstruction South:

1868 First elected African-American Lieutenant Governor: Oscar Dunn (Louisiana).
First African-American mayor: Pierre Caliste Landry, Donaldsonville, Louisiana.
That year, Louisiana's legislature was half African-American.

First African American elected to either chamber of the U.S. Congress: Senator Hiram Rhodes Revels (R-Miss.).
First African American elected to U.S. House of Representatives: Joseph Rainey (R-S.C.).

Meanwhile, Chicago couldn't get even an alderman who was African-American until 1915 (he later became the first African American to be elected to Congress from outside the South). Apparently despite thinking it a perfectly good idea for white Southerners, white Northerners didn't think *they* ought to be governed by African Americans.

Shame only rationally attaches where there is some difference in treatment. As I said in my first comment, it's irrational to see VRA coverage as some kind of "shaming" exercise when covered jurisdictions have been in about half the states, including many non-Southern ones. However, as Chase observed, it's problematic actually to treat one region differently from the rest, especially in the loss of suffrage for whites.

Posted by: PG | Jun 30, 2013 5:21:07 PM

"which does repeatedly refer to the Fifteenth Amendment"

"Refer," yes. Analyze or apply? Not so much.

The "suppose that ..." hypo would be of interest to some other case, not this one, as the Congress identified ample *continuing* abuses in the preclearance jurisdictions. Indeed, if any of them had really "changed for the better," bail-out was available to them. For some unguessable reason, Mississippi, Alabama, etc. did not avail themselves of this provision.

Posted by: Anderson | Jul 1, 2013 6:18:10 PM

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