Tag: 14th amendment

Supreme Court Should Use Texas Redistricting Case to Reconsider Voting Rights Act

The decennial redrawing of electoral districts consistently produces extensive litigation. The most notable cases this cycle come, as they often have, from Texas.

A number of activist groups challenged the Texas legislature’s maps for state house, state senate, and congressional districts, alleging racial discrimination under Section 2 of the Voting Rights Act in a special three-judge federal district court in San Antonio. At the same time, Texas is seeking in another three-judge district court in D.C. the “preclearance” of its maps that it needs to implement them under the VRA’s Section 5.

Enacted in 1965 to combat pervasive discrimination against black voters in the South, the VRA has exceeded expectations in excising that shameful phenomenon. Its application now, however, stymies the orderly implementation of free and fair elections, particularly in jurisdictions subject not only to the general prohibition on race-based voter discrimination, but also the Section 5 preclearance requirement.

Originally conceived as a check on states where discrimination was prevalent in the 1960s, preclearance requires certain jurisdictions to obtain federal approval before changing any election laws. (The Section 5 list is bizarre: six of the eleven states of the Old Confederacy — and certain counties in three others — plus Alaska, Arizona, and some counties or townships in five other states as diverse as New Hampshire and South Dakota. Curiously, (only) three New York counties are covered, all boroughs in New York City. What is going on in the Bronx, Brooklyn, and Manhattan that is not in Queens or Staten Island?) To obtain preclearance, proposed changes may not result in “retrogression,” a reduction in minority voters’ ability to elect their “preferred” candidates.

Section 5 was originally a valuable tool in the fight against systemic disenfranchisement, but now facilitates the very discrimination it was designed to prevent. Indeed, the prohibition on retrogression effectively requires districting that assures that minority voters are the majority in a set number of districts — an inherently race-conscious mandate. The law, most recently renewed in 2006 for another 25 years, is based on deeply flawed assumptions and outdated statistical triggers, and flies in the face of the Fifteenth Amendment’s requirement that all voters be treated equally.

In any event, because the D.C. court here had not yet ruled on preclearance, the San Antonio court felt obligated to draw “interim” maps for use pending final adjudication of both the Section 2 and 5 cases. Texas filed an emergency appeal with the Supreme Court, arguing that the lower court insufficiently deferred to the Texas legislature’s maps. Now on an expedited briefing and argument schedule, Cato filed an amicus brief supporting neither side and arguing that this case demonstrates all that is wrong with the VRA as it currently exists — highlighting the tension between the VRA and the Constitution and the practical difficulties that conflict engenders for election administration.

Put simply, the VRA’s success has undermined its continuing viability; courts and legislatures struggle mightily and often fruitlessly to satisfy both the VRA’s race-based mandate and the Fifteenth Amendment’s equal treatment guarantee. We also point out that Section 5’s selective applicability precludes the establishment of nationwide districting standards, confounding lower courts and producing different, often contradictory, treatment of voting rights in different states — in large part because Sections 2 and 5 themselves conflict with each other. We note that regardless of the outcome of this litigation, it is unlikely that Texas will have fully legal electoral maps in time to administer the 2012 elections in a fair and efficient manner.

These difficulties — constitutional, statutory, and practical — disadvantage candidates, voters, legislatures, and courts, and undermine the VRA’s great legacy of vindicating the voting rights of all citizens. The Court should thus schedule this case for broader reargument on the constitutionality of the Voting Rights Act as presently conceived.

The Court will hear argument in Perry v. Perez on January 9.  See SCOTUSblog’s coverage for more on the case.

The Constitutional Case for Marriage Equality

On June 12, 1967, the U.S. Supreme Court struck down bans on interracial marriage in more than a dozen states in the case of Loving v. Virginia. Today, the highest court in the United States may soon take on the issue of marriage equality for gay and lesbian relationships. Attorneys David Boies and Theodore B. Olson are hoping the case of Perry v. Schwarzenegger will further establish marriage as a fundamental right of citizenship. Also featured are John Podesta, President of the Center for American Progress, Cato Institute Chairman Robert A. Levy and Cato Executive Vice President David Boaz.

Watch the full event from which many clips were pulled here and Robert A. Levy’s presentation here.

Federal Education Results Prove the Framers Right

Yesterday, I offered the Fordham Foundation’s Andy Smarick an answer to a burning question: What is the proper federal role in education? It was a question prompted by repeatedly mixed signals coming from U.S. Secretary of Education Arne Duncan about whether Washington will be a tough guy, coddler, or something in between when it comes to dealing with states and school districts.  And what was my answer? The proper federal role is no role, because the Constitution gives the feds no authority over American education.

Not surprisingly, Smarick isn’t going for that. Unfortunately, his reasoning confirms my suspicions: Rather than offering a defense based even slightly on what the Constitution says, Smarick essentially asserts that the supreme law of the land is irrelevant because it would lead to tough reforms and, I infer, the elimination of some federal efforts he might like.

While acknowledging that mine is a “defensible argument,” Smarick writes that he disagrees with it because it “would presumably require immediately getting rid of IDEA, Title I, IES, NAEP, and much more.” He goes on to assert that I might “argue that doing so is necessary and proper because it’s the only path that squares with our founding document, but policy-wise it is certainly implausible any time soon.” Not far after that, Smarick pushes my argument aside and addresses a question to “those who believe that it’s within the federal government’s authority to do something in the realm of schools.”

OK. Let’s play on Smarick’s grounds. Let’s ignore what the Constitution says and see what, realistically, we could expect to do about federal intervention in education, as well as what we can realistically expect from continued federal involvement.

First off, I fully admit that getting Washington back within constitutional bounds will be tough. That said, I mapped out a path for doing so in the last chapter of Feds In The Classroom, a path that doesn’t, unlike what Smarick suggests, require immediate cessation of all federal education activities. Washington obviously couldn’t be pulled completely out of the schools overnight.

Perhaps more to Smarick’s point, cutting the feds back down to size has hardly been a legislatively dead issue. Indeed, as recently as 2007 two pieces of legislation that would have considerably withdrawn federal tentacles from education – the A-PLUS and LEARN acts – were introduced in Congress. They weren’t enacted, but they show that getting the feds out of education is hardly a pipe dream. And with tea parties, the summer of townhall discontent, and other recent signs of revolt against big government, it’s hardly out of the question that people will eventually demand that the feds get out of their schools.

Of course, there is the other side of the realism argument: How realistic is it to think that the federal government can be made into a force for good in education? It certainly hasn’t been one so far. Just look at the following chart plotting federal education spending against achievement, a chart that should be very familiar by now.

Education Spending

Notice anything? Of course! The federal government has spent monstrous sums on education without any corresponding improvement in outcomes!

Frankly, it’s no mystery why: Politicians, as self-interested people, care first and foremost about the next election, not long-term education outcomes. They care about what will score them immediate political points. That’s why federal politicians have thrown ever-more money at Title I without any meaningful sign it makes a difference. That’s why No Child Left Behind imposed rules that made Washington politicians look tough on bad schools while really just pushing more dough at educrats and giving states umpteen ways to avoid actual improvement. That’s why Arne Duncan vacillates between baddy and buddy at the drop of a headline. And that basic reality – as well as the reality that the people employed by the public schools will always have the greatest motivation and ability to influence government-schooling policies – is why it is delusional to expect different results from federal education interventions than what we’ve gotten for decades.

OK. But what about a law like the Individuals with Disabilities Education Act (IDEA)? Hasn’t it helped millions of disabled kids who would otherwise have been neglected by states and local school districts?

For one thing, it is constitutional and totally appropriate under the 14th Amendment for the federal government to ensure that states don’t discriminate against disabled children in provision of education. IDEA, however, does much more than that, spending billions of federal dollars, promoting over-identification of “disabilities,” and creating a hostile, “lawyers playground” of onerous, Byzantine rules and regulations, all without any proof that the law ultimately does more good than harm. And again, this should be no surprise, because federal politicians care most about wearing how much they “care” on their reelection-seeking sleeves, no matter how negative the ultimate consequences may be.

Alright-y then. How about the National Assessment of Educational Progress (NAEP)? Isn’t it an invaluable source of national performance data?

NAEP results are used in the above chart, so obviously I have found NAEP of some value.  But does its usefulness justify ignoring the Constitution? Absolutely not. For one thing, instead of NAEP we could use extant, non-federal tests such as the SAT, ACT, PSAT, Stanford 9, Terra Nova, and many other assessments to gauge how students are doing. And as useful as NAEP may be, it sits perilously close to being as worthless as everything else that Washington has done in education. All that has kept it from being hopelessly politicized is that there is no money attached to how states and local districts do on it. And as Smarick’s boss at Fordham, Chester Finn, testified in 2000, even with that protection NAEP and other supposedly netural federal education undertakings are under constant threat of political subversion:

Unfortunately, the past decade has also shown how vulnerable these activities are to all manner of interference, manipulation, political agendas, incompetence and simple mischief. It turns out that they are nowhere near to being adequately immunized against Washington’s three great plagues:

• the pressing political agendas and evanescent policy passions of elected officials (in both executive and legislative branches)and their appointees and aides,

• the depredations and incursions of self-serving interest groups and lobbyists (of which no field has more than education), and

• plain old bureaucratic bungling and incompetence.

Based on all of this evidence, it is clear that the only realistic avenue for getting rational federal education policy is, in fact, to follow the Constitution and have no federal education policy. In other words, the very realistic Framers of the Constitution were absolutely right not to give the federal government any authority over education, and it is time, right now, for us to stop ignoring them. Doing anything else will only ensure continued, bankrupting failure.

Barnett on the Supreme Court Confirmation Hearing

Cato senior fellow Randy Barnett has a piece in the Wall Street Journal on the Senate’s confirmation hearing for Obama’s nominee to the Supreme Court.  Excerpt:

Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment “incorporate” the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

Read the whole thing.