American Constitutionalism in Historical Perspective (packet)

Necessary & Proper enforcement: Congress c’ve found that this was reasonable way to protect these rts.

Remedial legislation: congress had an elaborate fact finding, saw the depth and pervasiveness of racism in the So. Accepting normative J that there can be no deprivation of fund rt of voting, Congress can implement these remedies. Only applied to those states who meet coverage formula—suspend literacy tests for 5 yrs from last act of substantive voting discrim, Justice Dept has to approve voting system changes, and fed examiners are put in place in EVERY election. SC reaffirms Lassiter.

Katzenbach v. Morgan, 1966: Brennan majority upholds congr action under VRA to franchise Puerto Rican voters (if complete 6^th grade in school in language other than English c/n be denied rt to vote b/c of inability to rd/write English), noting that it is unprincipled b/c excludes other non-English minorities in NYC. So ct would never pass this just for PR b/c is unprincipled so Congress can use its powers to remedy any 14^th A pattern of exclusion on suspect grounds (has to switch to 14^th A b/c 15^th only mentions race and need to address ethnic discrim) b/c not subject to arguments of principle. (See Dworkian, Wexlerian theory on this).

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   Remedial interpretation: Congress can suspend literacy tests b/c the prob more dire than judiciary had supposed. (SC v. Katzenbach). Law eliminates invidious discrim vs. PRs who had been deprived of rts/opps. Responds to dissent by noting that expanding rts to grps 1 at a time. If PR gets rt to vote, can secure less ethnic discrim which is necessary & proper.
   
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   Substantive interpretation: Congress can act even if the ct h/n found a const violation. Congress c’ve found that discrimin vs. PRs was happening and could then make NEW normative J that this is an unfair burden on their const rts (given widespread knowledge of non-English speakers on NY politics). Allowing congress to restrike the balance, where the judiciary c/n. Brennan saying this is just fact finding and thus is OK to expand fund rts, as long as not contracting them (one way ratchet-read more into the rt). Congress needs to decide when it’s contracting vs. expanding rts. Not J review but Congress so can be underinclusive.
   
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