Luis E. Fuentes-Rohwer, Legislative Findings, Congressional Powers, and the Future of the Voting Rights Act, 82 Ind. L.J. 99 (2007).
Abstract: In enacting the Voting Rights Act of 1965, Congress sought to overcome decades of outright refusal to enforce the Fifteenth Amendment. The statute was considered “harsh” and “punitive” by critics, and the Supreme Court partially agreed, calling the legislation “stringent,” “inventive,” and “uncommon.” Yet the Court ultimately sided with the national ruling coalition as represented by the administration and overwhelming congressional majorities. This Article examines the early internal debates over the constitutionality of the Act and concludes that the question of legislative findings played a key role. In particular, internal notes and memoranda from the Katzenbach cases reveal that Justice Brennan worried about the Court’s use of legislative findings in upholding congressional enactments. This unease helps explain the different approaches taken by the Court in South Carolina v. Katzenbach and Katzenbach v. Morgan to the question of congressional powers under the Reconstruction Amendments. As we look ahead to future constitutional challenges to the Voting Rights Act and question whether the statute will meet the Court’s newfound demands under its federalism revolution, this Article underscores Justice Brennan’s implicit admonition: in the end, the question of legislative findings will be nothing more than a smokescreen, as this will be a debate about judicial attitudes and the Court’s long-standing role as an integral member of the national ruling coalition.
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