Bench Memos

Which Branch Should Be Strongest?

I’m glad to hear Ramesh agree that originalists who assert the unconstitutionality of the Voting Rights Act aren’t necessarily guilty of any deep inconsistency, since he’s unsure exactly what the original meaning of the 15th Amendment is. I agree, too, that further originalist analysis on this point would be welcome. I would note, however, that the best evidence of the Constitution’s original meaning is the plain language of the text. And the plain language of the 15th Amendment, which merely empowers Congress to enforce a ban on racial discrimination in voting, requires a severe amount of stretching to accommodate the sweeping federal imposition that is Section 5 of the Voting Rights Act.

As for the relative strength of the legislative and the judicial branches, the Constitution is not explicit on this point, and the historical evidence is mixed. It’s clear that different founding fathers had views that diverged pretty significantly. (See, e.g., Hamilton vs. Madison, Marshall vs. Jefferson.) It’s true that the Supreme Court did not push back against congressional enactments in the early Republic nearly as often as it has come to do in later years, but this may be because Congress before the Civil War and the rise of the Progressive movement was more respectful of its constitutional limitations. All of this is to suggest that the Constitution and its history do not provide such a clear picture of exactly what the proper level of judicial review should be in our federal system. The sad fact is that constitutional meaning is not always clear in every place we need it to be in order to apply it in practice. So what do we do then? How much do judges defer to the legislature? Because good-faith readers of the document can differ on this question, people’s views on it inevitably are (and perhaps should be) influenced by a host of practical considerations that are largely divorced from originalist analysis.