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Human and Civil Rights and the Constitution

The Reconstruction Amendments were intended to give our nation what Abraham Lincoln promised at Gettysburg: a New Birth of Freedom. Unfortunately, much of their power and meaning was eviscerated in a series of egregious Supreme Court rulings in the 1870s and 1880s. These rulings are just as wrong as long-overruled opinions such as Plessy v. Ferguson, but remain on the books. Read properly, the Reconstruction Amendments provide a solid foundation for courts and the federal government to protect human and civil rights. CAC works to raise public consciousness about the importance of the Reconstruction Amendments and convince politicians and judges about the mandate these Amendments create for the advancement of civil and human rights.

Think Tank

When the Constitution was framed, the promise of access to the federal courts was at the heart of a new system of government accountable to the people. The federal judiciary, with the Supreme Court at its head, would be the “keystone of the arch,” establishing a binding rule of law for the nation. Today, the Framers’ constitutional vision is in shambles. In filling a vacancy on the Court, left by the passing of Justice Antonin Scalia, progressives have a chance to restore basic constitutional first principles that give Americans their day in court to redress legal wrongs and prevent abuse of power by the government. The story laid out in the pages that follow shows why this is what the Constitution’s text and history requires.

With the Supreme Court poised to consider the review of marriage equality rulings by lower courts around the country, opponents of marriage equality have radically changed the thrust of their defense of state laws that deny same-sex couples the right to marry. Defenders of discriminatory marriage laws are now pressing a federalism/democracy argument, claiming that the people of a state have the authority to decide whether to place a badge of inferiority on same-sex couples and deny them the right to marry. As documented in this Issue Brief, this argument, which flies in the face of the Constitution’s text and history, is no more viable than prior arguments.

For the last 47 years, year in and year out, the Voting Rights Act (VRA) has stood as our nation’s most effective civil rights law to realize the guarantees of the Fifteenth Amendment and prevent and deter state-sponsored racial discrimination in voting. Much of the Act’s success is due to the preclearance requirement contained in Section 5 of the Voting Rights Act, which requires state and local jurisdictions with a history of racial discrimination in voting to get “preclearance” from the U.S. Department of Justice (DOJ) or a three-judge federal court in Washington, D.C., before changing their voting laws and regulations. 

This Term, in Shelby County v. Holder, the Supreme Court will take up the constitutionality of the preclearance requirement for the sixth time since the Voting Rights Act was enacted in 1965. The Court should reject Shelby County’s argument. In this Issue Brief, we show that the constitutionality of the preclearance requirement of the Voting Rights Act should not be in serious doubt.

On February 14, 2013, CAC’s David Gans and Elizabeth Wydra released an Issue Brief distributed by the American Constitution Society entitled “The Voting Rights Act Is In Jeopardy, But It Shouldn’t Be: A Close Look at Shelby County v. Holder.” This Issue Brief explains why the constitutionality of the preclearance requirement of the Voting Rights Act – the question being considered by the Supreme Court in Shelby County – should not be in serious doubt.   First, the Constitution’s text expressly gives Congress the power to enact legislation to enforce the Constitution’s prohibition against racial discrimination in voting. Second, the Supreme Court has affirmed the constitutionality of the preclearance provision four times.  Finally, the record developed by Congress in 2006 – as well as the actions of states in the run up to the 2012 elections – manifestly shows the continuing need for the preclearance provision to prevent and deter racial discrimination in voting.