American Constitutionalism in Historical Perspective (packet)

No literacy tests: all test would be suspended.

Pre-Clearance Requirements: lawyers at DOJ must decide that any proposed changes are consistent w/ the command of the VRA. Must ensure that the changes d/n have discriminatory effects. Based on J that states could not be trusted to protect the interests of black voters, must be put in the hands of a more trustworthy institution.

Federal Examiner at each polling place: to ensure that the anti-discrim mandate is being enforced

Cases challenging congr enforcement authority: §5 arg that Congress is compromising §1 Marbury power thru its enforcement power. Ct d/n want to allow substantive power & limits scope of remedial power in Boerne.

1. 
   Lassiter v. Northampton Cty Election Bd., 1959: S. Ct. allowed a literacy test to continue. Found that ability to read and write could have some impact on proper use of the ballot. No history presented to the court on the effects of these test on black voters—thin judicial record of facts.
   
2. 
   Significance:
   
   1. 
      Congress disagrees w/ S. Ct. J: conducts fact finding, uncovers long history of discrim. Literacy d/n fairly measure the underlying values espoused by the ct b/c the test were administered by the Southern Oligarchy in a biased way. Grandfathered illiterate whites and only excluded Blacks. Due to long history of unequal opp in ed for blacks (revealed by Brown), s/n be used as further ground to disenfranchise.
      
   2. 
      Harlan: notes that this type of fact finding is something the court c/n do. Essentially VRA overrules Lassiter based on a new factual record. Shows impact of civil rts movement in uncovering factual discrimination.
      
3. 
   South Carolina v. Katzenbach, 1966: upholds VRA as w/in Congress’ enforcement powers under Reconstn Amendmts, but probably struck down under the Commerce Clause. Reconstruction changed balance of power, if basic rts are threatened, then no state power over them anymore. If the judiciary and congress agree that there is a history of discrimination, there is no impediment to congress securing the rts thru its enforcement powers, as long as a reasonable J has been made.
   
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