Over on Bench Memos, Roger Clegg has made a couple of posts discussing Section 5 of the Voting Rights Act and, in particular, an apparent statement by Senator Leahy that finding Section 5 to be unconstitutional would be an act of “conservative [judicial] activism.”  While I think the question is close enough that throwing around the label of judicial activism is unwarranted, I do have to disagree with Roger that it would be appropriate for the Court, today, to strike down Section 5.  I suppose you could say that I am of the school of thought which believes that “the Court cannot legitimately conclude that Section 5 might once have been constitutional but, because of changes in the facts, isn’t any longer,” and I find unpersuasive Roger’s argument to the contrary.

Roger’s attempted counterargument hinges on the observation that “courts determine facts all the time, and changes in factual circumstances may mean that what once met an — unchanging — constitutional standard no longer does.”  In a his follow-up post, he adds this analogy:

If a policeman asks a judge for a search warrant and produces no evidence, he won’t get it; if he produces good evidence, then he will get it. That’s not judicial activism. Likewise, as the evidence of severe discrimination peculiar to the South diminishes, so will the defensibility of Section 5 before the courts. That’s not judicial activism either.

To be sure, Roger’s observation is accurate and his policeman example is an excellent and familiar demonstration of what he observes.  Unfortunately, Roger misses one key difference between warrant requirements and the Voting Rights Act: The warrant requirements mandated by the Constitution itself.

When the Constitution tells us in the 4th Amendment that “no Warrants shall issue, but upon probable cause,” it is expressly requiring the courts to make a factual determination.  In order for a warrant to issue, the police must set forth sufficient facts to establish that they have probable cause.  If the police cannot carry their burden to show probable cause, the Constitution tells us that “no Warrants shall issue,” which means that if any warrant does issue, that warrant is unconstitutional.  Facts make all the difference because the Constitution says that they do.

The Constitution makes no similar factual demands in the 15th Amendment upon which Section 5 (and the Voting Rights Act in general) is based.  Instead, the 15th Amendment declares a right, declares a list of things which may not infringe that right, and then tasks Congress with enforcement.  Nowhere does the 15th Amendment impose factual requirements on Congress; there is no standard of evidence which Congress must meet to show that its actions are allowed.

As Americans, we should all rightly expect that Congress will bases its acts of legislation on solid factual grounds.  I am more than convinced that with respect to the blind renewal of preclearance requirements, Congress has failed to do so.  Every legislator who voted in favor of renewing preclearance deserves to face tough questions about how they could possibly, on the basis of present day facts, have found racial discrimination of such severity that intruding on state sovereignty remains necessary.  But in this case it is up to the political process, not the courts, to make sure that those questions get answered.