GPO-CONAN-2017-10-15.pdf

1978 en banc revd 442 us 366 1979 scott v moore 680

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1978) (en banc), rev’d , 442 U.S. 366 (1979); Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) (en banc). The Court’s decision in Morrison , however, appears to preclude the use of § 1985(3) in relation to Fourteenth Amendment rights absent some state ac- tion. 2228 109 U.S. 3, 13–14 (1883). 2229 Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). 2230 383 U.S. 745, 783 and n.7 (1966) (concurring and dissenting). 2231 384 U.S. 641 (1966). Besides the ground of decision discussed here, Morgan also advanced an alternative ground for upholding the statute. That is, Congress might have overridden the state law not because the law itself violated the Equal Protection Clause but because being without the vote meant the class of persons was subject to discriminatory state and local treatment and giving these people the ballot would afford a means of correcting that situation. The statute therefore was an appropriate means to enforce the Equal Protection Clause under “necessary and proper” standards. Id. at 652–653. A similar “necessary and proper” approach under- lay South Carolina v. Katzenbach, 383 U.S. 301 (1966), under the Fifteenth Amend- ment’s enforcement clause. 2248 AMENDMENT 14—RIGHTS GUARANTEED
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Act of 1965 2232 barring the application of English literacy require- ments to a certain class of voters, the Court rejected a state argu- ment “that an exercise of congressional power under § 5 . . . that prohibits the enforcement of a state law can only be sustained if the judicial branch determines that the state law is prohibited by the provisions of the Amendment that Congress sought to en- force.” 2233 Because the Court had previously upheld an English lit- eracy requirement under equal protection challenge, 2234 acceptance of the argument would have doomed the federal law. But, said Jus- tice Brennan, Congress itself might have questioned the justifica- tions put forward by the state in defense of its law and might have concluded that, instead of being supported by acceptable reasons, the requirements were unrelated to those justifications and discrimi- natory in intent and effect. The Court would not evaluate the com- peting considerations that might have led Congress to its conclu- sion; because Congress “brought a specially informed legislative competence” to an appraisal of voting requirements, “it was Con- gress’s prerogative to weigh” the considerations and the Court would sustain the conclusion if “we perceive a basis upon which Congress might predicate a judgment” that the requirements constituted in- vidious discrimination. 2235 In dissent, Justice Harlan protested that “[i]n effect the Court reads § 5 of the Fourteenth Amendment as giving Congress the power to define the substantive scope of the Amendment. If that indeed be the true reach of § 5, then I do not see why Congress should not be able as well to exercise its § 5 ‘discretion’ by enacting statutes so as in effect to dilute equal protection and due process decisions of this Court.” 2236 Justice Brennan rejected this reasoning: “We em- phasize that Congress’s power under § 5 is limited to adopting mea-
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