Comments on: Re: Senator Leahy and ‘Conservative Activism Pure and Simple’ http://www.flamesoffreedom.com/2009/06/18/re-senator-leahy-and-conservative-activism-pure-and-simple/ Wed, 08 Feb 2012 04:57:06 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Robert http://www.flamesoffreedom.com/2009/06/18/re-senator-leahy-and-conservative-activism-pure-and-simple/comment-page-1/#comment-216 Robert Sat, 20 Jun 2009 05:21:21 +0000 http://www.flamesoffreedom.com/?p=165#comment-216 Are you talking about a law from Congress which requires states give only half votes? If so, that would certainly seem to violate the right guaranteed by the 15th Amendment as a facial matter by denying people a full and fair vote. In that case, the courts should certainly say so. But, in my view, that doesn't implicate the "appropriateness" standard so much as it does the standard rule that Congress cannot diminish a Constitutional right. As to the broader question of what role the courts should have in determining what is or is not "appropriate," I do believe that to be a political question which the courts ought to avoid. Certainly, the courts will have a role in making sure that Acts of Congress bear some rational relationship to the authority Congress has been given (e.g., Congress can't bail out car companies under the 15th Amendment), but I think that standard is met here. However, although applying a "congruent and proportional" standard certainly wouldn't be much of a stretch, as long as Congress hasn't violated a Constitutional right, I think it does go farther than the text of the 15th Amendment allows. Are you talking about a law from Congress which requires states give only half votes? If so, that would certainly seem to violate the right guaranteed by the 15th Amendment as a facial matter by denying people a full and fair vote. In that case, the courts should certainly say so. But, in my view, that doesn’t implicate the “appropriateness” standard so much as it does the standard rule that Congress cannot diminish a Constitutional right.

As to the broader question of what role the courts should have in determining what is or is not “appropriate,” I do believe that to be a political question which the courts ought to avoid. Certainly, the courts will have a role in making sure that Acts of Congress bear some rational relationship to the authority Congress has been given (e.g., Congress can’t bail out car companies under the 15th Amendment), but I think that standard is met here. However, although applying a “congruent and proportional” standard certainly wouldn’t be much of a stretch, as long as Congress hasn’t violated a Constitutional right, I think it does go farther than the text of the 15th Amendment allows.

]]> By: Roger Clegg, Ctr for Equal Opportunity http://www.flamesoffreedom.com/2009/06/18/re-senator-leahy-and-conservative-activism-pure-and-simple/comment-page-1/#comment-214 Roger Clegg, Ctr for Equal Opportunity Fri, 19 Jun 2009 13:45:01 +0000 http://www.flamesoffreedom.com/?p=165#comment-214 But, Robert, this seems to suggest that the Court cannot under any circumstances determine that voting-rights legislation is not "appropriate" (to quote the Fifteenth Amendment's enforcement clause). Do you really believe that? Suppose Congress passes a law that gives whites only a half-vote in perpetuity, or blacks only a half-vote, or requires white voters to wear their underwear on the outside of their pants whenever they vote. If you would allow all of that, then okay; but if you won't, then you must be conceding that there is a role for the Court to ensure that the legislation is "appropriate," and it doesn't seem to me much of a stretch to say that this means "congruent and proportional" (the Court's standard to date) to the Fifteenth Amendment's substantive guarantees. But, Robert, this seems to suggest that the Court cannot under any circumstances determine that voting-rights legislation is not “appropriate” (to quote the Fifteenth Amendment’s enforcement clause). Do you really believe that? Suppose Congress passes a law that gives whites only a half-vote in perpetuity, or blacks only a half-vote, or requires white voters to wear their underwear on the outside of their pants whenever they vote. If you would allow all of that, then okay; but if you won’t, then you must be conceding that there is a role for the Court to ensure that the legislation is “appropriate,” and it doesn’t seem to me much of a stretch to say that this means “congruent and proportional” (the Court’s standard to date) to the Fifteenth Amendment’s substantive guarantees.

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