Akhil Reed Amar argues:
Section 5 of the Voting Rights Act (VRA) is an obviously appropriate, and thus lawful, congressional enactment pursuant to section 5 of the Fourteenth Amendment, which explicitly empowers Congress to “enforce, by appropriate legislation, the provisions of this article” — that is, the Fourteenth Amendment itself. Those who oppose section 5 of the VRA claim that its regime of selective preclearance — whereby certain states with sorry electoral track records must get preapproval from federal officials in order to do things that other states with cleaner electoral track records may do automatically — is not appropriate, not proper, not proportional. But if section 5 of the VRA is unconstitutional, why wasn’t section 5 of the Fourteenth Amendment itself unconstitutional? For that section — and indeed every section — of the Fourteenth Amendment was itself adopted by a process in which certain states were subject to a kind of selective preclearance. In the very process by which section 5 and the rest of the Fourteenth Amendment were adopted, certain states with sorry electoral track records were obliged to get preapproval from federal officials in order to do things that other states with cleaner electoral track records were allowed to do automatically. But it would be preposterous to say that section 5 of the Fourteenth Amendment was itself illegal. And what is true of section 5 (of the amendment) is true of section 5 (of the VRA). Section 5 (of the VRA) is constitutionally proper, appropriate, and proportional, under the very same constitutional principles that legitimated section 5 (of the Fourteenth Amendment) itself.
In short, any serious constitutional analysis of the special preclearance system of the Voting Rights Act must come to grips with the special preclearance system that generated the Fourteenth Amendment itself in the 1860s. Between 1865 and 1868, states with abysmal track records of rights-enforcement and democratically deficient voting rules were not allowed back into Congress to sit alongside states with minimally acceptable track records, and these same democratically deficient states were also not allowed to resume full powers of state self-governance enjoyed by their nondeficient sister states. Instead, states with sorry track records were required to submit new state constitutions for federal preapproval/preclearance, and were also required to ratify the Fourteenth Amendment itself.
I don’t find this convincing, but I’ll leave it to keener minds to sort out the details. However, I would like to plug this NR piece I wrote a while back, in which I argued against the assumption “that any measure we undertook to fight racism is inherently good, and that any principle that warns against such a measure is inherently evil.”
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