[SOUND] The Supreme Court has not been consistent in answering the question, what can Congress do under the Post-Civil War Amendments? Earlier in discussing Congress's commerce power, said one might see two perspectives. A nationalist perspective that wants to broadly define the power, and a federalist perspective, that wants to narrowly define the power to leave authority to the states. Likewise, when it comes to Congress's power under the Post-Civil War Amendments, the Supreme Court has shifted over time. At times, it's taken a very broad nationalist perspective, expansively defining the authority of Congress. In other times, the Court has taken a narrow or restrictive approach. Initially, the Supreme Court took the former, the broad approach. And the key case here was Katzenbach versus Morgan, Congress passed a law regard to voting. The Supreme Court had held that it was permissible for a state to deny a person the right to vote if the individual failed a literacy test. Congress then passed a statute that says that any person who went through the sixth grade in a school in Puerto Rico shall not be denied the right to vote on account of failing a literacy test. So what the Supreme Court was trying to do was to use its powers under Section 5 of the 14th Amendment, under Section 2 of the 15th Amendment to effectively overrule the Supreme Court case. And the Supreme Court in Katzenbach versus Morgan upheld this. The Supreme Court said Congress, under Section 5 of the 14th Amendment and under Section 2 of the 15th Amendment, has the power to legislate to expand rights. The court, in this opinion by Justice William Brennan said Congress can't narrow or dilute rights. But the Congress, in addition to providing remedies for what rights the Court has found, may on its own expand the scope of rights. This is the Nationalist perspective. It's one that wants to give Congress broad authority to protect rights to eradicate discrimination. But there's an alternative perspective, and that's the one that's controlling today. This is a Federalist perspective. This wants to narrowly define what Congress can do under Section 5 of the 14th Amendment, or Section 2 of the 15th Amendment. And this perspective says that Congress, when it acts all these amendments, should not be able to create new rights, or to expand the scope of rights. This prospectus says that Congress's authority under these amendments is solely remedial. All that Congress can do is to act to prevent or remedy the violation of a right already recognized by a court. And such laws have to be very narrowly tailored. In the words of the Supreme Court, they have to proportionally congruent to having proven constitutional violations. The initial case to articulate this was City of Boerne versus Flores in 1997. In 1990, in a case called Employment Division versus Smith, the Supreme Court very narrowly interpreted the protections of the Free Exercise Clause of the First Amendment. In 1993, Congress passed and President Clinton signed the Religious Freedom Restoration Act. The Religious Freedom Restoration makes clear in its preamble that its goal was to effectively overturn Employment Division versus Smith. It said that the goal of Congress was to restore religious freedom by statute, that it had previously been under the First Amendment of the Constitution. City of Boerne versus Flores involved a catholic church in the city of Boerne, Texas. The parish had grown in terms of the number of parishioners, and the size of the congregation outgrew the facility. And so the church asked for permission to tear down the existing structure and to build a new one. But the town said no. The town said that this is a historic landmark, can't therefore tear down a historic landmark to build a new church. The church, through its archbishop Flores, sued the city of Boerne for violating the Religious Freedom Restoration Act. The church said this is a substantial burdening of our religious freedom. The city of Boerne defended by saying that the Religious Freedom Restoration Act is unconstitutional. The Supreme Court agreed and said that at least it's the state local governments, the Religious Freedom Restoration Act exceeded the scope of Congress's power under Section 5 of the 14th Amendment. The Supreme Court, in an opinion by justice Anthony Kennedy, said Congress, under Section 5 of the 14th Amendment, can't create new rights or expand the scope the scope of rights. The Court said, Congress isn't, quote, enforcing the 14th Amendment if its creating new rights to expand the scope of rights. The quote was especially concerned that the Supreme Court was effectively, that Congress was effectively overturning the Supreme Court decision. The Court says, the Supreme Court is the one that's supposed to be the arbiter of the meaning of the Constitution. The Supreme Court cited Marbury versus Madison. The Court expressed concern about states rights and federalism. The Court was worried that if Congress could legislate in such a way, then it would take away authority from the states and limit what the states could do. And so the court said Congress, when it acts under Section 5 of the 14th Amendment, can't create new rights or expand the scope of rights. All that Congress can do is act to prevent or remedy violations of rights already recognized by the courts, and such laws have to be, again, quoting the words of the Supreme Court, proportionate congruent to, I mean, proven constitutional violations. I realize that all of this is abstract, so let me take a concrete example. Under Roe versus Wade, women have the right to abortion. So Congress, under Section 5 of the 14th Amendment, could outlaws to keep state and local governments from interfering with women's right to an abortion. Since it's a right that's been recognized by the Court, Congress can use its power under Section 5 of the 14th Amendment to prevent violations, to remedy violations, so congress could adapt a statute, like the Freedom of Access to Clinic Entrances. Protecting access to facilities where abortions are performed is part of preventing violations of the right, is part of remedying violations to the right. But imagine that someday, Roe versus Wade gets overruled. Imagine there's then no longer a Constitutional right to abortion. Could Congress use it's power under Section 5 of the 14th Amendment to then say that it's going to recognize a statutory right to abortion? No, because if there's no right to abortion in the Constitution, under my hypothetical, for Congress to then legislate to create a right be Congress expanding rights, creating new rights, and that's not allowed. The Supreme Court followed this federalist approach to Congress' powers into the 14th and 15th Amendment, just a few years ago, in an important case, Shelby County,Alabama versus Holder. It well illustrates the restrictive federalist approach the Supreme Court has been taking to Congress's powers, here under the 14th and 15th Amendments. Shelby County versus Holder involved the Voting Rights Act of 1965. I think that the Voting Rights Act of 1965 is among the most important Federal laws adopted in my lifetime. Section 2 of the Voting Rights Act prohibits race discrimination in voting, specifically, it forbids any electoral practice that has racially discriminatory effect. But Congress knew that just prohibiting discrimination wasn't going to be enough. Congress was aware that especially southern states were continually changing their electoral practices to disenfranchise minority voters. Congress was aware that what was going on was much like the arcade game, Whac-A-Mole, that a state would adopt a law that harmed minority voters, it would get challenged only to be withdrawn and another to pop up, and then another and so on. So congress created what's called a preclearance requirement. Section 5 of the Voting Rights Act of 1965 said that for any state or local government, that in a history of race discrimination and voting, it only could have changed its election practices if it got pre-approval, preclearance in the Attorney General, or a three-judge in the Federal Court. The Section 4B of the Voting Rights Act specifies the formula for determining which jurisdictions need preclearance. Under the most recent version, it was nine states and local governments all over the country that needed to get preclearance. Shelby County, Alabama is just south of Summit, Alabama. It's a jurisdiction in a state with a long history of race discrimination in voting. It brought a challenge, Congress's authority to adopt the preclearance requirement under the Voting Rights Act. The preclearance requirement has a fascinating history. As I mentioned, it was part of a law that was adopted in 1965. It was scheduled to expire in 1982, Congress voted nearly unanimously to extend it for another 25 years. President Ronald Reagan signed that extension into law. These provisions requiring preclearance, were then scheduled to expire in more recently, 2007, 25 years after 1982. In 2006, Congress held extensive hearings, it compiled a legislative history that's 16,000 pages long. Congress found that there's continued race discrimination in voting, especially in the covered jurisdictions that needed preclearance. Congress voted almost unanimously to extend the preclearance requirement for another 25 years. The vote in the Senate was 98 to nothing, there were only 33 no votes in the House of Representatives. President George W Bush signed the extension into law, but the Supreme Court in a five to four decision, declared that Section 4B of the Voting Rights Act, the formula that determines which states need preclearance is unconstitutional. That effectively has ended the preclearance requirement of the Voting Rights Act. Chief Justice Roberts wrote for the Court drawn by Justices Scalia, Kennedy, Thomas and Alito. Justice Ginsburg wrote the descent drawn by Justices Breyer and Sotomayor and Kagan. Chief Justice Roberts, writing for the Court, said that the Voting Rights Act was initially adopted in 1965, the formula for preclearance was changed in 1982, but when Congress reauthorized the statute in 2007, in 2006, it didn't change the formula. So he said the formula is based on outdated statistics. Chief Justice Roberts said, times have changed with regard to race and voting. He said the Constitution includes a principle of equal state sovereignty, that is Congress must treat all states the same. Under Section 4B of the Voting Rights Act, only some states needed to get preclearance. So this was a violation of state sovereignty and states rights, it exceeded the scope of Congress's power under Section 5 of the 14th Amendment, under Section 2 of the 15th Amendment. This is the first time since the Civil Rights cases in 1875 that the Supreme Court has declared unconstitutional a federal civil rights statute dealing with race. Justice Ginsburg wrote a vehement dissent. She urged that the Court should have given deference to Congress in prohibiting race discrimination. She emphasized that Congress had found a long history of race discrimination in voting, especially in the covered jurisdictions. Almost as soon as the Supreme Court case came down, states like Texas, North Carolina immediately put in place election systems where preclearance had been denied, they'd been blocked by the Attorney General. Shelby County versus Holder is important in invalidating a major Civil Rights statute, the preclearance requirement of the Voting Rights Act, but it has a larger significance at all as well. It, along with City of Boerne versus Flores, show that the Court is narrowly interpreting the scope of Congress's powers under the 14th and 15th Amendments. Is this desirable? When I talked at the commerce power, when I talk of the tacts in spending power. So the underlying question is how broadly, how narrowly should these powers be interpreted. Was the Court right in City of Boerne and Shelby County that's necessary to narrowly define Congress's powers under the 14th and 15th Amendment, or is this wrong? Should we broadly define the scope of Congress's powers to deal with things like violence against women or religious freedom, or the voting rights of minorities in southern states? That's the underlying question again. Do we want a broad definition of Congress's power under the Post-Civil War Amendments or a narrow one? Do we want Congress to have to the tools to deal with social problems, or do we want to leave more to states for their governance?
