Reinforcing Representation: Congressional Power to Enforce the Fourteenth and Fifteenth Amendments in the Rehnquist and Waite Courts'

Abstract

This Article is a response to scholarship that accused the Rehnquist Court of "undoing the Second Reconstruction," much like the Waite Court has long been credited with ending the first. The Article argues that a parallel does indeed exist between the Rehnquist Court's response to the Second Reconstruction and the Waite Court's reaction to the first. It maintains, however, that decisions by both Courts respond to Reconstruction not with undifferentiated hostility, but instead in a more complex manner. These decisions posit a two-tiered vision of Congress' enforcement powers under the Reconstruction-Era Amendments, under which Congress possesses broad discretion to free state political processes of racial discrimination, but is accorded far more limited authority to combat other forms of discrimination at the state and local level. This disaggregation of Congress's enforcement powers reflects the view that individual liberty is best protected at the state level, but only so long as effective, representative governance is maintained. Racial discrimination affecting voting prevents States from fulfilling their obligation to protect individual liberty. Decisions by both Courts accord deference to congressional efforts to block such discrimination and thereby to reinforce representative governance at the state level. The Article argues that they countenance this broad congressional power in order to preserve the primacy of state authority elsewhere.

Keywords: Rehnquist Court, Waite Court, Reconstruction, voting rights

JEL Classification: D72, H70, J70, J71, J78, K41