Over at SCOTUSblog, Carl Cecere of the Constitutional Sources Advisory Board argues that the text and history of the Reconstruction Amendments do not offer any “easy answers” for the Shelby County case, suggesting that “the Reconstruction-era Framers disputed the extent of Congress’ enforcement authority just as we do today.”  In his view, “the debate, it seems, that is taking place today at the Court over Congress’s enforcement authority is simply the latest chapter in a much longer debate that has taken place from the very creation of that power.”   Cecere is of course correct that the Reconstruction Amendments produced a heated debate about whether Congress should be given the power to “enforce” by “appropriate legislation” the Amendments’ constitutional guarantees, but he misses the very critical fact that the Framers of the Reconstruction Amendments resolved the debate by granting Congress broad, new powers at the expense of the states.  Indeed, the evidence he cites confirms, not undercuts, the fact that the original understanding of the Enforcement Clauses was to give broad new powers to Congress to ensure that the right to vote, along with other fundamental rights, would actually be enjoyed by all Americans regardless of race.    

Cecere discusses what a number of different members of Congress said about the enforcement power, but he slights entirely the seismic shift in the Constitution’s balance of powers wrought by the three Reconstruction Amendments, each of which added to the powers of the federal government.  The trajectory of these three Amendments – ignored by Cecere – powerfully shows the breadth of powers granted to Congress.  The Thirteenth Amendment, for the first time in the Constitution’s history, gave Congress the express power to enforce the Constitution’s promise of freedom.  Debates over Congress’ first attempt to enact landmark civil rights legislation to enforce the Thirteenth Amendment, the Civil Rights Act of 1866, led to the passage of the Fourteenth Amendment, which armed Congress with new powers to protect fundamental rights and equality under the law for all persons.  Culminating this historical progression, the Fifteenth Amendment’s plain language demonstrates that Congress, not the courts and certainly not the states, was being given sweeping powers to stamp out every conceivable attempt by the states to deny the franchise on account of race.  The only fair reading of the history is that the Reconstruction Amendments gave Congress broad powers – no less sweeping than Congress’ Article I powers – to ensure protection of the rights guaranteed by those Amendments, including the right to vote free from racial discrimination.  That history – set out in CAC’s brief in Shelby County – shows why no leading conservative constitutional scholars have come to Shelby County’s defense.  To anyone who pays heed to the text and history of the Constitution, the Voting Rights Act is unquestionably constitutional.

To try to muddy the waters, Cecere suggests that even some supporters of the Reconstruction Amendments took a narrow view of the enforcement power.  But the evidence does not bear that out.  For example, Cecere points to statements made by Senator Daniel Pratt during debates over the Ku Klux Klan Act of 1871.  But, as the Consource report itself shows, Pratt affirmed a very broad view of Congress’ enforcement power, noting that these Amendments provided a “specific grant of power” to Congress.  He explained that “[t]he fourteenth and fifteenth amendments have conferred upon this race, in the amplest form, civil and political privileges equal to those enjoyed by the white race. Whatever legislation is essential to secure them in the enjoyment of these rights without let, hinderance [sic], or molestation, is constitutional.”  Likewise, Representative Robert Hale of New York, also cited by Cecere, affirmed that the power to “enforce” by “appropriate legislation” means that “Congress are authorized to select in their own discretion all measures . . . to remedy the great evil against which the amendment proposes to guard.”  Under these formulations, the Voting Rights Act, which for nearly half a century has played a critical role in protecting the right to vote from all manner of discriminatory state action, is plainly constitutional.

There are some aspects of the Constitution where constitutional text and history is ambiguous, hard to decipher, or cuts in different ways, but the Enforcement Clauses of the Reconstruction Amendments is not one of them.   These provisions, reflecting the lessons of the antebellum period, effected a fundamental shift in the Constitution’s balance of powers.  In the wake of Dred Scott, the Framers gave to Congress the power to enact prophylactic legislation to ensure full enjoyment of the Reconstruction Amendments’ new guarantees of freedom, equality, and the right to vote free from racial discrimination.  The question for the Justices in Shelby County is whether to follow or subvert that clear grant of constitutional authority.