Order for All Counsel Meeting

    No. 12-96

3fn ®[)e

Supreme Court of tfje Mnttetr States

Shelby County, Alabama,
Petitioner,

v.

Eric Holder, Jr., Attorney General, et al.,
Respondents.

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The District of Columbia Circuit

BRIEF AMICI CURIAE OF 
CONSTITUTIONAL LAW SCHOLARS AND 

CONSTITUTIONAL ACCOUNTABILITY 
CENTER IN SUPPORT OF RESPONDENTS

Douglas T. Kendall 
Elizabeth B. Wydra*

* Counsel of Record 
David H. Gans 
CONSTITUTIONAL 
ACCOUNTABILITY 
CENTER
1200 18th St., NW, Ste 501 
Washington, D.C. 20036 
(202) 296-6889
elizabeth@theusconstitution.org

Counsel for Amici Curiae
W ilson-Epes Printing Co., Inc. -  (202)789-0096 -  Washington, D. C. 20002

mailto:elizabeth@theusconstitution.org


TABLE OF CONTENTS

Page

TABLE OF CONTENTS.................................................i

TABLE OF AUTHORITIES.........................................iii

INTEREST OF AMICI CURIAE................................... 1

INTRODUCTION AND
SUMMARY OF ARGUMENT..................................2

ARGUMENT.................................................................... 5

I- The Plain Language and Original Meaning of the 
Enforcement Clauses of the Thirteenth, 
Fourteenth, and Fifteenth Amendments Give 
Congress Broad Power to Enact Measures to 
Protect Individual Rights and Prevent State- 
Sponsored Discrimination........................................ 5

II. The Debates over the Thirteenth, Fourteenth, 
and Fifteenth Amendments and 
Contemporaneous Enforcement Legislation 
Reflect the Broad Legislative Powers that the 
Framers Sought to Confer on Congress to Protect 
Personal, Individual Rights and Prevent State- 
Sponsored Discrimination...................................... 14

A. The Thirteenth Amendment Was Written to 
Give Congress the Power to Enforce the 
Thirteenth Amendment’s Promise of 
Freedom............................................................... 15



11

B. The Fourteenth Amendment Was Written to
Give Congress the Power to Protect Personal, 
Individual Rights and Prevent State- 
Sponsored Racial Discrimination.....................19

C. The Fifteenth Amendment Was Written to
Give Congress the Power to Ensure Enjoyment 
of the Right to Vote Free From Racial 
Discrimination....................................................23

III. The History of the Fifteenth Amendment
Demonstrates that “Appropriate” Enforcement 
Legislation Includes Broad, Prophylactic 
Regulation to Protect the Right to Vote...............26

IV. This Court’s Precedents Establish that the
Constitution Gives Congress Broad Power to 
Prevent and Deter Racial Discrimination in 
Voting........................................................................ 29

A. The Court Has Consistently Held that
McCulloch’s Broad Construction of 
Congressional Power Applies to Legislation 
Enforcing the Fifteenth Amendment...............29

B. The Court Has Consistently Held that the
Fifteenth Amendment Permits Congress to 
Single Out Jurisdictions With Proven 
Histories of Racial Discrimination in Voting 
for Prophylactic Regulation..............................34

CONCLUSION..............................................................38

TABLE OF CONTENTS (cont'd)

Page



Ill

Cases

Ableman v. Booth,
62 U.S. (21 How.) 506 (1859)................................ 12

City of Boerne v. Flores,
521 U.S. 507 (1997)........................6, 32, 33, 34, 36

City of Rome v. United States,
446 U.S. 156 (1980).........................................29, 31

Civil Rights Cases,
109 U.S. 3 (1886).............................................31, 36

College Sav. Bank v. Florida Prepaid Postsecondary 
Educ. Expense Bd.,

527 U.S. 666 (1999)............................................. 33

Coyle v. Smith,
221 U.S. 559 (1911)................................................35

Dickerson v. United States,
530 U.S. 428 (2000)................................................38

Dred Scott v. Sandford,
60 U.S. (19 How.) 393 (1857).................................. 3

Ex Parte Virginia,
100 U.S. 339 (1880).................................... 8, 19, 20

Fitzpatrick v. Bitzer,
427 U.S. 445 (1976)................................................33

TABLE OF AUTHORITIES

Page



IV

Georgia v. United States,
411 U.S. 526 (1973)................................................31

Hepburn v. Griswold,
75 U.S. (8 Wall.) 603 (1870)................................... 9

Hunter v. Underwood,
471 U.S. 222 (1985).................................................. 6

James Everard’s Breweries v. Day,
265 U.S. 545 (1924)................................................ 31

Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968).........................................17, 30

Legal Tender Cases,
79 U.S. 457 (1870)................................................. 13

Lopez v. Monterrey County,
525 U.S. 266 (1999).........................................31, 33

McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819)..................... 7, 9, 10

McDonald v. City of Chicago,
130 S. Ct. 3020 (2010)..............................16, 19, 22

Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 
557 U.S. 193 (2009).................................. 34, 35, 37

Oregon v. Mitchell,
400 U.S. 112 (1970).............................................. 32

TABLE OF AUTHORITIES (cont’d)

Page



V

TABLE OF AUTH ORITIES (cont’d)

Page

Prigg v. Pennsylvania,
41 U.S. (16 Pet.) 539 (1842)............................11, 12

Rice v. Cayetano,
528 U.S. 495 (2000)...........................................5, 23

Rogers v. Lodge,
458 U.S. 613 (1982).................................................. 6

Shaw v. Reno,
509 U.S. 630 (1993)...........................................6, 27

South Carolina v. Katzenbach,
383 U.S. 301 (1966)..................... 30, 32, 34, 35, 37

Tennessee v. Lane,
541 U.S. 509 (2004)................................................32

Texas v. White,
74 U.S. 700 (1869).................................................. 13

United States v. Chavez,
290 U.S. 357 (1933)................................................35

United States v. Morrison,
529 U.S. 598 (2000)................................................36

Yick Wo v. Hopkins,
118 U.S. 356 (1886).................................................. 6



VI

Constitutional Provisions and Legislative Materials 

U.S. Const.:
art. IV, § 2, cl. 3 .......................................................11
amend XIII, §1 ...........................................................5
amend XIII, §2 ..........................................................5, 6
amend XIV, § 1 ...........................................................5
amend XIV, § 5 ..........................................................5, 6
amend XV, §1.............................................................5
amend XV, §2............................................................5, 6

Cong. Globe:

38th Cong., 1st Sess. (1864)........................ passim

38th Cong., 2nd Sess. (1865)........................ passim

39th Cong., 1st Sess. (1866)........................ passim

40th Cong., 3rd Sess. (1869)........................ passim

41st Cong., 2nd Sess. (1870)........................ passim

42nd Cong., 1st Sess. (1871)........................ passim

42nd Cong., 2nd Sess. (1872)....................... passim

43rd Cong., 1st Sess. (1874)........................ passim

Journal of the Senate, State of California, 18th Sess.
(1869-70)..................................................................... 25

TABLE OF AUTHORITIES (cont’d)

Page



vii

Journal of the State of Michigan House of Rep.
(Mar. 5, 1869).............................................................25

TABLE OF AUTH ORITIES (cont’d)

Page

Journal of the Senate of the State of Texas, 11th 
Legis. (1866)................................................................22

Books. Articles, and Other Materials

Akhil Reed Amar, America’s Constitution: A 
Biography (2005)........................................................ 22

Akhil Reed Amar, Foreward; The Document and the 
Doctrine, 114 HARV. L. Rev. 26 (2000)..................... 16

Akhil Reed Amar, Intratextualism, 112 HARV. L. 
Rev. 747 (1999)..................................................... 7, 17

Jack M. Balkin, The Reconstruction Power, 85 
N.Y.U. L. REV. 1801 (2010).................................... 7, 9

James E. Bond, No Easy Walk to Freedom: 
Reconstruction and the Ratification of the 
Fourteenth Amendment (1997).............................. 22

Stephen G. Calabresi & Nicholas P. Stabile, On 
Section 5 of the Fourteenth Amendment, 11 U. PA. J. 
Const. L. 1431 (2009).............................................6, 34

Evan Caminker, “Appropriate” Means-Ends 
Constraints on Section 5 Powers, 53 STAN. L. REV. 
1127 (2001)................................................................... 7



V l l l

Steven A. Engel, Note, The McCulloch Theory of the 
Fourteenth Amendment: City of Boerne v. Flores 
and the Original Understanding, 109 YALEL.J. 115 
(1999)............................................................................7

Eric Foner, Reconstruction: America’s 
Unfinished Revolution, 1863-1877 (1988)..........27

Robert J. Kaczorowski, The Supreme Court and 
Congress’ Power to Enforce Constitutional Rights:
An Overlooked Moral Anomaly, 73 FORDHAM L. REV. 
153................................................................................ 11

James Kent, Commentaries on American Law 
(1826)............................................................................. 14

Michael W. McConnell, Institutions and 
Interpretation: A Critique of City of Boerne v.
Flores, 111 HARV. L. Rev. 153 (1997)...............7, 8, 9

John T. Noonan, Narrowing the Nation’s Power: 
The Supreme Court Sides W ith the States 
(2002) ............................................................................7

Michael Stokes Paulsen, A Government of Adequate 
Powers, 31 HARV. J. L. & PUB. POL’Y 991 (2008).. 7, 8

Joseph Story, Commentaries on the 
Constitution of the United States (1833)......... 13

TABLE OF AUTH ORITIES (cont’d)

Page



IX

TABLE OF AUTHORITIES (cont’d)

Page

Michael Vorenberg, Final Freedom: The Civil 
War, the Abolition of Slavery, and the 
Thirteenth Amendment (2001).............................. 16





INTEREST OF AMICI CURIAE

The following scholars are experts in the field 
of constitutional law, each of whom has published a 
book or law review article on the Fourteenth 
Amendment or Fifteenth Amendments. Amici law 
professors teach courses in constitutional law and 
have devoted significant attention to studying the 
Reconstruction Amendments:

Jack M. Balkin is Knight Professor of 
Constitutional Law and the First Amendment at 
Yale Law School.

Guy-Uriel Charles is the Charles S. Rhyne 
Professor of Law at Duke Law School and Founding 
Director of the Duke Law Center on Race, Law & 
Politics.

Luis Fuentes-Rohwer is Professor of Law and 
Harry T. Ice Faculty Fellow at Indiana University 
Maurer School of Law at Bloomington.

Adam Winkler is Professor of Law at UCLA 
School of Law.

Amicus Constitutional Accountability Center 
(CAC) is a think tank, public interest law firm, and 
action center dedicated to fulfilling the progressive 
promise of our Constitution’s text and history. CAC 
works in our courts, through our government, and 
with legal scholars to improve understanding of the 
Constitution and to preserve the rights and freedoms 
it guarantees. CAC accordingly has a strong interest 
in this case and the scope of the protections of the



2

Fourteenth and Fifteenth Amendments. CAC has 
filed amicus curiae briefs in the U.S. Supreme Court 
in cases raising significant issues regarding the text 
and history of the Reconstruction Amendments, 
including Northwest Austin Municipal Util. Dist. No. 
1 v. Holder, 557 U.S. 193 (2009), McDonald v. City of 
Chicago, 130 S. Ct. 3020 (2010), Coleman v. 
Maryland Court of Appeals, 132 S. Ct. 1327 (2012); 
and Fisher v. University of Texas at Austin, No. 11- 
345.1

INTRODUCTION AND 
SUMMARY OF ARGUMENT

Shelby County’s constitutional attack on the 
preclearance requirement of the Voting Rights Act— 
one of the Act’s most successful provisions in 
preventing and deterring voting discrimination— 
depends on a cramped understanding of Congress’s 
express power to “enforce” by “appropriate 
legislation” the guarantees of the Fifteenth 
Amendment. In Shelby County’s view, courts have 
an obligation to strictly scrutinize the legislative 
remedies Congress deems “appropriate” to enforce

1 Pursuant to Supreme Court Rule 37.6, amici 
curiae state that no counsel for a party authored this 
brief in whole or in part, and no party or counsel for a 
party made a monetary contribution intended to fund 
the preparation or submission of this brief. No 
person other than amici curiae made a monetary 
contribution to its preparation or submission. 
Pursuant to Supreme Court Rule 37.3, amici curiae 
state that all parties have consented to the filing of 
this brief; blanket letters of consent have been filed 
with the Clerk of the Court.



3

the constitutional right to vote free from racial 
discrimination. This deeply flawed vision has no 
basis in the text, history, and original meaning of the 
Fifteenth Amendment, which, along with the 
Thirteenth and Fourteenth Amendments, 
significantly expanded the powers of Congress.

The Reconstruction Amendments fit together 
like an interlocking puzzle with pieces that both 
stand alone and build off each other. In Section One, 
we show that these Amendments and their nearly 
identically worded Enforcement Clauses collectively 
reflect the lessons of the antebellum period and the 
Civil War and significantly change the balance of 
power between the federal government and the states. 
Against the backdrop of Dred Scott v. Sandford, 60 
U.S. (19 How.) 393 (1857), the framers chose 
language—“appropriate legislation”—intended to 
give Congress broad discretion to select the means to 
“enforce” the Constitution’s new guarantees of 
personal, individual rights. In Section Two, we 
discuss the ratification of each of the Amendments 
separately, illustrating how each subsequent 
Amendment built off the experience of Congress in 
trying to enforce the Constitution in the face of 
continuing discrimination by recalcitrant southern 
states. Culminating this historical progression, the 
Fifteenth Amendment’s plain language and history 
demonstrates that Congress, not the courts and 
certainly not the states, was being given sweeping 
powers to stamp out every conceivable attempt by the 
states to deny the franchise on account of race. With 
the Fifteenth Amendment’s simple and focused 
mandate and the clear textual and historical 
evidence of the intended role of Congress, the



4

Court’s deference to Congress should be at its apex in 
reviewing legislation duly enacted under Section 2 of 
the Fifteenth Amendment.

In resisting the force of the Reconstruction 
Amendments’ grants of enforcement authority, 
Shelby County’s argument that the Voting Rights Act 
offends state sovereignty echoes the same rejected 
arguments opponents of the Amendments made in 
challenging their adoption in Congress and their 
ratification by the states. The County ignores the 
historical reality that the Amendments ratified at the 
end of the Civil War were “the result of [a] great 
constitutional revolution” that “ended with the 
vindication of individual rights by the national 
power.” Cong. Globe, 41st Cong., 2nd Sess. 3608 
(1870). History shows that the Reconstruction 
Amendments gave Congress broad power—no less 
sweeping than Congress’s Article I powers—to ensure 
the rights guaranteed by those Amendments, 
including the right to vote free from racial 
discrimination.

The text and history of the Fifteenth 
Amendment support the constitutionality of 
Congress’s near-unanimous 2006 reauthorization of 
the Voting Rights Act, demonstrating that when 
Congress acts to prevent racial discrimination in 
voting, its authority is broad and entitled to great 
deference. Congress had ample basis for maintaining 
Section 5 as a bulwark against current and ongoing 
state-sponsored racial discrimination in voting 
concentrated in the covered jurisdictions. 
Accordingly, the judgment of the court of appeals 
should be affirmed.



5

ARGUMENT

I. The Plain Language and Original 
Meaning of the Enforcement Clauses of 
the Thirteenth, Fourteenth, and Fifteenth 
Amendments Give Congress Broad Power 
to Enact Measures to Protect Individual 
Rights and Prevent State-Sponsored 
Discrimination.

The Thirteenth, Fourteenth, and Fifteenth 
Amendments fundamentally altered our Constitution, 
establishing broad guarantees of freedom, equality 
under the law, and the right to vote free from racial 
discrimination and empowering Congress to protect 
these personal, individual rights. The Thirteenth 
Amendment outlaws “slavery” and “involuntary 
servitude . . . within the United States,” U.S. Const, 
amend XIII, §1; the Fourteenth Amendment provides 
that “No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States,” “deprive any person of life, 
liberty and property, without due process of law,” or 
deny “to any persons within its jurisdiction the equal 
protection of the law.” U.S. Const. XIV, § 1. Finally, 
in language “as simple in command as it was 
comprehensive in reach,” Rice v. Cayetano, 528 U.S. 
495, 512 (2000), the Fifteenth Amendment provides 
that “[t]he right of citizens of the United States to 
vote shall not be denied or abridged . . .  on account of 
race, color, or previous condition of servitude.” U.S.



6

Const, amend. XV, § 1. To make these guarantees a 
reality, each of the Amendments provides that 
“Congress shall have power to enforce this article by 
appropriate legislation.” U.S. Const, amends. XIII, § 
2; XIV, § 5, XV § 2.

In writing the Enforcement Clauses, the 
framers of the Reconstruction Amendments did not 
simply add to the hst of express congressional powers 
enumerated in Article I and elsewhere in the 
Constitution. Instead, they explicitly invested 
Congress with a central role in enforcing the 
constitutional rights protected by our fundamental 
charter, including the right to vote, a right this Court 
has long described as “preservative of all rights.” 
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).2 
Where, as here, Congress acts to enforce the right to 
vote free from racial discrimination expressly 
granted in the Fifteenth Amendment and protected 
as well by this Court’s cases construing the 
Fourteenth Amendment’s guarantee of equal 
protection, see Rogers v. Lodge, 458 U.S. 613 (1982); 
Hunter v. Underwood, 471 U.S. 222 (1985); Shaw v. 
Reno, 509 U.S. 630 (1993), Congress may “make 
stronger the rights” guaranteed by these 
Amendments, including by “legislat[ing]

2 As this Court has recognized, the framers of the 
Fourteenth Amendment considered and rejected proposals 
that would have granted Congress a plenary power to 
enact laws to secure various individual rights, preferring 
instead constitutional language taken from the Thirteenth 
Amendment that gave Congress the power to “enforce” 
constitutional guarantees by “appropriate legislation.” 
See City of Boerne v. Flores, 521 U.S. 507, 520-23 (1997).



7

prophylactically against new evils that it anticipates 
may soon arise.” Stephen G. Calabresi & Nicholas P. 
Stabile, On Section 5 of the Fourteenth Amendment, 
11 U. PA. J. Const. L. 1431, 1439, 1442 (2009).

The language that the framers used to define 
the scope of Congress’s authority under the 
Thirteenth, Fourteenth and Fifteenth 
Amendments—“appropriate legislation”—reflects a 
decision to give Congress wide discretion to enact 
whatever measures it deemed “appropriate” for 
achieving the purpose of the Amendment. In giving 
Congress the power to enact “appropriate 
legislation,” the framers granted Congress the 
sweeping authority of Article I’s “necessary and 
proper” powers as interpreted by the Supreme Court 
in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 
(1819), a seminal case well known to the Framers of 
those Amendments. See, e.g., JOHN T. NOONAN, 
Narrowing the Nation’s Power: The Supreme 
Court Sides W ith the States 28-31 (2002); Jack M. 
Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 
1801, 1810-15 (2010); Michael Stokes Paulsen, A 
Government of Adequate Powers, 31 HARV. J. L. & 
PUB. Pol’Y 991, 1002-03 (2008); Evan Caminker, 
‘Appropriate” Means-Ends Constraints on Section 5 
Powers, 53 STAN. L. Rev. 1127, 1158-66 (2001); Akhil 
Reed Amar, Intratextualism, 112 HARV. L. Rev. 747, 
822-27 (1999); Michael W. McConnell, Institutions 
and Interpretation: A Critique of City of Boerne v. 
Flores, 111 HARV. L. Rev. 153, 188 (1997); Steven A. 
Engel, Note, The McCulloch Theory of the Fourteenth 
Amendment: City of Boerne v. Flores and the 
Original Understanding, 109 YALE L.J. 115, 131-34 
(1999). When Congress acts to enforce the



8

Reconstruction Amendments, including the Fifteenth 
Amendment, its authority is broad and entitled to 
great deference.

Both the plain language of the text and the 
context against which the framers acted confirm that 
the “Amendments’ enforcement clauses are most 
naturally read as new, sweeping ‘necessary and 
proper’ clauses.” Paulsen, 31 HARV. J. L. & PUB. 
POL’Y at 1002. The framers of the Reconstruction 
Amendments, including the Fifteenth Amendment, 
chose language conferring on Congress the power to 
“enforce” by all “appropriate legislation”—language 
taken from Chief Justice Marshall’s foundational 
opinion in McCulloch sustaining the broad federal 
powers of Congress under Article I—because they 
were reluctant to leave the judiciary with sole 
responsibility for protecting against racial 
discrimination in voting and other constitutional 
violations.

With Southern states acting to strip African 
Americans of precious rights less than a decade after 
Dred Scott v. Sandford, the framers were determined 
to give Congress a leading role in securing the 
constitutional guarantees of the three Reconstruction 
Amendments. “[T]he remedy for the violation” of the 
Fifteenth Amendment, like the remedies for violation 
of the Thirteenth and Fourteenth Amendments, “was 
expressly not left to the courts. The remedy was 
legislative, because . . . the amendment itself 
provided that it shall be enforced by legislation on 
the part of Congress.” Cong. Globe, 42nd Cong., 2nd 
Sess. 525 (1872). The Amendments “were intended 
to be, what they really are, limitations of the power of



9

the States and enlargements of the power of 
Congress.” Ex Parte Virginia, 100 U.S. 339, 345 
(1880). “Born of the fear that the judiciary would 
frustrate Reconstruction by a narrow interpretation 
of congressional power,” McConnell, 111 HARV. L. 
REV. at 182, the text of the Reconstruction 
Amendments incorporated the language of 
McCulloch, establishing a broad federal legislative 
power to protect constitutional rights with 
corresponding deference from the courts to respect 
this new authority.

In McCulloch, Chief Justice Marshall laid 
down the fundamental principle determining the 
scope of Congress’s powers under the Necessary and 
Proper Clause: “Let the end be legitimate, let it be 
within the scope of the constitution, and all means 
which are appropriate, which are plainly adapted to 
that end, which are not prohibited, but consist with 
the letter and spirit of the constitution, are 
constitutional.” 17 U.S. at 421 (emphasis added); see 
also Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 614- 
15 (1870) (quoting this passage in full and declaring 
that “[i]t must be taken then as finally settled . . . 
that the words” of the Necessary and Proper Clause 
are “equivalent” to the word “appropriate”); 
McConnell, 111 HARV. L. Rev. at 178 n.153 (“In 
McCulloch v. Maryland, the terms ‘appropriate and 
necessary and proper’ were used interchangeably.”). 
Indeed, in McCulloch, Chief Justice Marshall used 
the word “appropriate” to describe the scope of 
congressional power no fewer than six times. 
McCulloch, 17 U.S. at 408, 410, 415, 421, 422, 423. 
Thus, by giving Congress power to enforce the 
constitutional prohibition on racial discrimination in



10

voting by “appropriate legislation,” the framers 
“actually embedded in the text” the “language of 
McCulloch.” Balkin, 85 N.Y.U. L. Rev. at 1815 
(emphasis in original).

McCulloch’s broad construction of 
congressional power requires great deference by the 
courts in reviewing legislation enacted by Congress 
pursuant to an affirmative grant of power, such as 
the Enforcement Clause of the Fourteenth and 
Fifteenth Amendments. McCulloch, 17 U.S. at 421 
(explaining that “the sound construction of the 
constitution must allow to the national legislature 
that discretion, with respect to the means by which 
the powers it confers are to be carried into 
execution”). For the courts to substitute their own 
judgment regarding the necessity of measures 
enacted by Congress pursuant to its express powers 
would be to violate the separation of powers between 
the courts and Congress, “to pass the line which 
circumscribes the judicial department and to tread on 
legislative ground.” Id. at 423.

Throughout Reconstruction, the framers 
repeatedly stressed that McCulloch was the measure 
of congressional power under the Enforcement 
Clauses of the three Reconstruction Amendments, 
entrusting to the discretion of Congress a broad 
power to enforce constitutional rights. See, e.g., Cong. 
Globe, 39th Cong., 1st Sess. 1124 (1866) (“When 
Congress was clothed with power to enforce . . .  by 
appropriate legislation, it meant . . . that Congress 
should be the judge of what is necessary for the 
purpose of securing to [the freemen] those rights.”); 
Cong. Globe, 418t Cong., 2nd Sess. 3882 (1870)



11

(“Congress, then, is clothed with so much power as is 
necessary and proper to enforce the two amendments 
to the Constitution, and is to judge from the 
exigencies of the case what is necessary and what is 
proper.”); Cong. Rec., 43rd Cong., 1st Sess. 414 (1874) 
(“The power to secure equal civil rights by 
‘appropriate legislation’ is an express power; and 
Congress, therefore, is the exclusive judge of the 
proper means to employ. This has been settled in 
McCulloch vs. Maryland.”). Indeed, even opponents 
of the Reconstruction Amendments conceded that 
congressional enforcement power under the 
Amendments was equivalent to congressional power 
under Article I’s Necessary and Proper Clause. See, 
e.g., id. at 4084-85 (“ [W]hence comes these words
‘appropriate legislation’? They come from the 
language of Marshall in deciding the case McCulloch 
vs. The State of Maryland.”).

In drafting the Enforcement Clauses of the 
Reconstruction Amendments, the framers were also 
acutely aware of pre-Civil War Supreme Court 
decisions that gave a broad construction to 
Congress’s power to enforce what the Court viewed 
as a constitutional “right” to the return of slaves, as 
recognized by the Fugitive Slave Clause, U.S. Const, 
art. IV, § 2, cl. 3—one of the few provisions of the 
antebellum Constitution that limited state action. 
See Robert J. Kaczorowski, The Supreme Court and 
Congress’ Power to Enforce Constitutional Rights: An 
Overlooked Moral Anomaly, 73 FORDHAM L. REV. 153, 
221-30 (2004). In Prigg v. Pennsylvania, 41 U.S. (16 
Pet.) 539 (1842), the Court upheld the
constitutionality of the Fugitive Slave Act of 1793, 
concluding that it was justified as “appropriate”



12

legislation to enforce the Fugitive Slave Clause. Id. 
at 615. Relying on McCulloch, Justice Story 
expressed this conclusion using language that the 
framers of the Reconstruction Amendments would 
later adopt: “the natural inference” from the
existence of the right of recapture was that Congress 
was “clothed with the appropriate authority and 
functions to enforce it.” Id. at 615 (emphasis added). 
See also Ableman v. Booth, 62 U.S. (21 How.) 506, 
517, 526 (1859) (stating that Congress had power to 
“protect and guard the rights of all by appropriate 
laws” and upholding the Fugitive Slave Act of 1850) 
(emphasis added). Under Prigg, Congress had the 
same broad discretion to choose “appropriate” means 
for enforcing rights as it did when it acted to “carry 
into execution” its Article I powers, even when the 
Constitution provided no explicit textual authority 
for an enforcement power.

The framers of the Reconstruction 
Amendments, though they abhorred the “right” the 
Court had upheld in Prigg, made sure to incorporate 
the Prigg Court’s understanding of congressional 
power, and enlisted it in support of racial equality. 
Throughout Reconstruction, the framers invoked 
Prigg “as fixing the interpretation of the 
Constitution” as “authorizing affirmative legislation 
in protection of the rights of citizenship under 
Federal law . . . .” Cong. Globe, 42nd Cong., 1st Sess. 
app. 70 (1871); Cong. Globe, 41st Cong., 2nd Sess. 
3680 (1870) (invoking Prigg in support of legislation 
to “secure0 the right of the man to cast his ballot”). 
Under the Enforcement Clauses in the 
Reconstruction Amendments, they argued, “[s]urely 
we have the authority to enact a law as efficient in



13

the interests of freedom . . .  as we had in the 
interests of slavery.” Cong. Globe, 39th Cong. 1st Sess. 
at 475.

Like McCulloch and Prigg, Supreme Court 
cases of the era interpreting the scope of Congress’s 
express powers used “appropriate” interchangeably 
with “necessary and proper” and emphasized 
Congress’ broad discretion to enact laws pursuant to 
its express constitutional powers. See Legal Tender 
Cases, 79 U.S. 457, 542 (1870) (“Is it our province to 
decide that the means selected were beyond the 
constitutional power of Congress, because we may 
think that other means to the same ends would have 
been more appropriate . . . ? That would be to assume 
legislative power, and to disregard the accepted rules 
for construing the Constitution.”); Texas v. White, 74 
U.S. 700, 729 (1869) (explaining that “in the exercise 
of the power conferred by the guaranty clause, as in 
the exercise of every other constitutional power, a 
discretion in the choice of means is necessarily 
allowed”).

Finally, the influential treatise-writers of the 
age also read McCulloch as embracing congressional 
power to take “appropriate” measures to implement 
its powers, a point not lost on the framers of the 
Reconstruction Amendments. The accounts of 
congressional power authored by Justice Story and 
Chancellor Kent, for example, were cited repeatedly 
during the debates over the Amendments. See, e.g., 
Cong. Globe, 39th Cong., 1st Sess. 1093 (1866) 
(quoting Story); id. at 1118 (quoting Kent); id. at 
1292 (quoting Kent); id. at 1294 (quoting Story). 
Story used the word “appropriate” to emphasize that



14

Congress “must have wide discretion as to the choice 
of means.” 1 JOSEPH STORY, COMMENTARIES ON THE 
Constitution of the United States 417 (1833) 
(“[T]he only limitation upon the discretion would 
seem to be, that the means are appropriate to the end. 
And this must naturally admit of considerable 
latitude; for the relation between the action and the 
end . . .  is not always so direct and palpable, as to 
strike the eye of every observer.”) (emphasis added). 
Chancellor Kent likewise invoked McCulloch when 
stressing the importance of Congress’s power to 
adopt any means “which might be appropriate and 
conducive” to a permissible end. 1 JAMES KENT, 
Commentaries on American Law 238 (1826) 
(emphasis added).

By using the phrase “by appropriate 
legislation,” the framers wrote McCulloch’s broad 
construction of congressional power into the 
Enforcement Clause of the Reconstruction 
Amendments. From their perspective, with respect 
to the Fifteenth Amendment, Congress had broad 
authority to choose how to remedy violations of the 
Fifteenth Amendment’s prohibition on racial 
discrimination in voting by the states.

II. The Debates over the Thirteenth, 
Fourteenth, and Fifteenth Amendments 
and Contemporaneous Enforcement 
Legislation Reflect the Broad Legislative 
Powers that the Framers Sought to 
Confer on Congress to Protect Personal, 
Individual Rights and Prevent State- 
Sponsored Discrimination.



15

The debates over the Thirteenth, Fourteenth, 
and Fifteenth Amendments, both before Congress 
and in the states, and enforcement legislation 
enacted contemporaneously with the Amendments 
confirm what the text and original meaning of the 
Enforcement Clauses provide: the Constitution gives 
Congress broad enforcement power to “secure to 
citizens the actual enjoyment of the rights and 
privileges guaranteed.” Cong. Globe, 42nd Cong., 1st 
Sess. 375 (1871). As the debates reflect, the text was 
intended and understood to give Congress the same 
broad legislative powers recognized in foundational 
Supreme Court precedents, such as McCulloch and 
Prigg.

A. The Thirteenth Amendment Was 
Written to Give Congress the Power to 
Enforce the Thirteenth Amendment’s 
Promise of Freedom.

The Thirteenth Amendment eliminated 
slavery and, for the first time in the Constitution’s 
history, explicitly gave Congress the power to enforce 
the Constitution’s promise of freedom. Introducing 
the Thirteenth Amendment on behalf of the Senate 
Judiciary Committee, Senator Lyman Trumbull 
likened the Amendment’s Enforcement Clause to 
Article I’s Necessary and Proper Clause, explaining 
that the Thirteenth Amendment would “authorize 
the Congress of the United States to pass such laws 
as may be necessary to carry this provision into 
effect.” Cong. Globe, 38th Cong., 1st Sess. 1313 (1864); 
see also Cong. Globe, 38th Cong., 2nd Sess. 214 (1865) 
(describing the Enforcement Clause as “conferring 
upon Congress plenary power to pass all necessary



16

enactments to enforce this provision of the 
Constitution.”).

As Senator Trumbull’s comments reflect, the 
framers understood that the grant of enforcement 
power was critical to secure true freedom to the 
enslaved. Because of the grant of power to Congress, 
the Amendment would not merely end slavery, but 
would “obliterate the last lingering vestiges of the 
slave system [and] its chattelizing, degrading, and 
bloody codes,” Cong. Globe, 38th Cong., 1st Sess. 1324 
(1864), and ensure that “the rights of mankind, 
without regard to color or race, are respected and 
protected.” Id. at 2989. Indeed, opponents of the 
Thirteenth Amendment, both in Congress and in the 
states, understood that the Enforcement Clause 
would grant Congress broad powers and objected that 
the Enforcement Clause “confers on the Congress the 
power to invade any State to enforce the freedom of 
the African in war or peace” and “strikes down the 
corner-stone of the Republic, the local sovereignty of 
the States,” id. at 2962, providing Congress with a 
“dangerous grant of power.” MICHAEL VORENBERG,
Final Freedom: The Civil War, the A bolition of 
Slavery, and the Thirteenth Amendment 230 
(2001) (quoting Mississippi’s objection to Thirteenth 
Amendment).

This new congressional enforcement power 
was put into effect almost immediately. As the 39th 
Congress met in late 1865, Southern states were 
trying to wipe out the promise of freedom. States 
across the South passed Black Codes, harsh and 
discriminatory laws aimed at making African 
Americans second-class citizens. See Akhil Reed



17

Amar, Foreward; The Document and the Doctrine, 
114 HARV. L. Rev. 26, 64-65 (2000); McDonald v. City 
of Chicago, 130 S. Ct. 3020, 3038-40 (2010) 
(describing provisions of Black Codes that denied the 
freed slaves the right to bear arms). In order “to 
destroy all these discriminations and to carry into 
effect the constitutional amendment,” Cong. Globe, 
39th Cong., 1st Sess. 474 (1866), the 39th Congress 
enacted the Civil Rights Act of 1866. The Act, which 
prohibited denial or abridgment, on the basis of race, 
of the rights to make or enforce contracts, sue in 
courts, give evidence, own real and personal property, 
as well as to keep and bear arms, extended far 
beyond the self-executing provisions of the 
Thirteenth Amendment; in today’s terms, they were 
prophylactic enforcement measures. See Jones v. 
Alfred H. Mayer Co., 392 U.S. 409, 439-40 (1968) 
(“[T]he majority leaders in Congress—who were, 
after all, the authors of the Thirteenth Amendment— 
had no doubt that its Enabling Clause contemplated 
the sort of positive legislation that was embodied in 
the 1866 Civil Rights Act.”); Amar, Intratextualism, 
112 HARV. L. Rev. at 823 (explaining that the 1866 
Act, which “swept far beyond merely prohibiting 
slavery and involuntary servitude” illustrates the 
39th Congress’s “broad view” of the enforcement 
power).

The legislators who had just framed the 
Thirteenth Amendment pointed to McCulloch’s and 
Prigg’s expansive construction of congressional power 
in defending the Act’s constitutionality. Republicans 
drew on “the celebrated case of McCulloch v. The 
State of Maryland” to demonstrate why Congress had 
power to enact the 1866 Act. Cong. Globe, 39th Cong.,



18

1st Sess. 1118 (1866). Under McCulloch, Congress 
was the “sole judge” of the necessity of a measure 
that was indisputably directed at a legitimate end— 
“the maintenance of the freedom to the citizen,” a 
federal power “defined by the Constitution itself.” Id. 
The framers in the 39th Congress argued that Prigg’s 
broad understanding of the congressional 
enforcement power, previously a weapon against 
liberty, could now be applied in equality’s service: 
“We will turn the artillery of slavery upon itself.” Id.; 
see also id. at 1294 (“[W]e are not without light as to 
the power of Congress in relation to the protection of 
these rights. In the case of Prigg vs. Commonwealth 
of Pennsylvania—and this it will be remembered was 
uttered in behalf of slavery—I find this doctrine, and 
it is perfectly applicable to this case.”).

The overwhelming consensus among those who 
had framed the Thirteenth Amendment was that 
“Congress shall have the power to secure the rights of 
freemen to those men who had been slaves” and that 
“Congress must judge as to what legislation is 
appropriate and necessary to secure these men the 
rights of free men . . . .” Id. at 1124. As Senator 
Trumbull observed, the Enforcement Clause was an 
express grant of power “to secure freedom to all 
people in the United States” that “vests Congress 
with the discretion of selecting that ‘appropriate’ 
legislation, which it is believed will best accomplish 
the end.” Id. at 475.



19

B. The Fourteenth Amendment Was 
Written to Give Congress the Power to 
Protect Personal, Individual Rights 
and Prevent State-Sponsored Racial 
Discrimination.

The 39th Congress demonstrated its broad 
understanding of the enforcement power conferred by 
the Thirteenth Amendment by passing the Civil 
Rights Act of 1866 over President Johnson’s veto, but 
this fight crystallized the need for more 
constitutional change. Two months after the Act’s 
passage, Congress approved the Fourteenth 
Amendment to secure fundamental rights and 
equality against the hostile acts of state governments, 
once again arming Congress with broad enforcement 
power. This new grant of power ended any doubt 
about the constitutionality of the Civil Rights Act of 
1866. See McDonald, 130 S. Ct. at 3041 (explaining 
that “the Fourteenth Amendment was understood to 
provide a constitutional basis for protecting the 
rights set out in the Civil Rights Act of 1866”).

The debates over the Fourteenth Amendment, 
unsurprisingly, stressed the importance of a broad 
legislative power to protect constitutional rights. The 
leading proponents of the Amendment, Senator Jacob 
Howard and Representative John Bingham, 
delivered important speeches explaining that 
Congress would have wide latitude to enact 
“appropriate” measures for protecting constitutional 
rights. In their view, “whatever legislation is 
appropriate, that is . . . whatever tends to enforce



20

submission to the prohibitions [of the Fourteenth 
Amendment], and to secure to all persons the 
enjoyment of perfect equality of civil rights and the 
equal protection of the laws . . .  is brought within the 
domain of congressional power.” Ex Parte Virginia, 
100 U.S. at 346.

Introducing the Amendment in May 1866, 
Senator Howard emphasized the Enforcement 
Clause’s relation to the Necessary and Proper Clause 
interpreted in McCulloch, explaining that the 
Amendment brought the power to enforce the 
Constitution’s guarantees “within the sweeping 
clause of the Constitution authorizing Congress to 
pass all laws necessary and proper.” Cong. Globe, 
39th Cong., 1st Sess. at 2765-66. “Here is a direct 
affirmative delegation of power to Congress to carry 
out all the principles of all these guarantees, a power 
not found in the Constitution.” Id.

Senator Howard’s speech refutes a narrow 
reading of Congress’s power to “enforce” the 
Fourteenth Amendment by “appropriate legislation.” 
The enforcement provision, Howard said, conferred 
“authority to pass laws which are appropriate to the 
attainment of the great object of the amendment.” 
Cong. Globe, 39th Cong., 1st Sess. 2766 (1866) 
(emphasis added). Section 5 “casts upon Congress the 
responsibility of seeing to it, for the future, that all 
the sections of the amendment are carried out in 
good faith, and that no State infringes the rights of 
persons or property.” Id. at 2768. For Senator 
Howard, the enforcement provision was 
“indispensable” because it “imposes upon Congress 
this power and this duty. It enables Congress, in case



21

the States shall enact laws in conflict with the 
principles of the amendment, to correct that 
legislation by a formal congressional enactment.” Id.

In the House debates, Representative 
Bingham argued that Section 5 corrected “a want . . . 
in the Constitution of our country” by expressly 
giving the people the power “by congressional 
enactment” to protect “the inborn rights of every 
person . . . whenever the same shall be abridged or 
denied by the unconstitutional acts of any State.” 
Cong. Globe, 39th Cong., 1st Sess. 2542 (1866). This 
new grant of power would enable Congress to prevent 
“state injustice and oppression” id., and to “correct 
the unjust legislation of the states.” Id. at 2459; see 
also id. at 2498 (“We propose . . .  to give power to the 
Government of the United States to protect its own 
citizens within the States, within its own jurisdiction. 
Who will deny the necessity of this? No one.”); id. at 
app. 257 (explaining that the fifth section of the 
Amendment was “necessary in order to carry the 
proposed article into practical effect”).

The Fourteenth Amendment’s opponents also 
understood Section 5 to confer a broad discretion on 
Congress to enforce the Amendment’s provisions— 
and, in fact, this broad power was one of the reasons 
for their opposition to the Amendment. See id. at 
2500 (arguing that that the Fourteenth Amendment 
would “strike down . . . State rights and invest all 
power in the General Government”); id. at 2940 
(calling the enforcement clause “most dangerous”). 
Accordingly, while supporters and opponents of the 
Fourteenth Amendment parted ways on the merit of 
the Amendment’s broad enforcement power, both



22

sides agreed that the Amendment would provide 
Congress significant authority to enforce its 
provisions.

Likewise, during ratification, opponents of the 
Fourteenth Amendment expressed the fear that the 
authority to pass “appropriate legislation” would give 
Congress extensive power to define the obligations of 
states with respect to their citizens. See JAMES E. 
Bond, No Easy Walk to Freedom: Reconstruction 
and the Ratification of the Fourteenth 
AMENDMENT 254-55 (1997). One Texas Senator 
summed up these concerns: “What is ‘appropriate 
legislation?’ The Constitution is silent; therefore, it is 
left for the Congress to determine.” Journal of the 
Senate of the State of Texas, 11th Legis., 422 (1866). 
Likewise, Governor Jenkins of Georgia worried that 
Congress is “the proper judge0 of what constitutes 
appropriate legislation. If therefore, the amendment 
be adopted, and a fractional Congress . . .  be 
empowered ‘to enforce it by appropriate 
legislation,’what vestige of hope remains to the 
people of those States?” Bond, No EASY WALK TO 
Freedom at 238.

In 1867, President Johnson tried to strip 
Section 5 out of the Fourteenth Amendment, urging 
adoption of an alternative proposal that “eliminated 
Congress’ power to enforce the Amendment.” 
McDonald, 130 S. Ct. at 3078 (Thomas, J., 
concurring). That proposal failed, and “the American 
people ratified the Fourteenth Amendment . . . 
[kjnowing full well that . . . th[e] language authorized 
transformative new federal statutes to uproot all 
vestiges of unfreedom and inequality.” Akhil Reed



23

Amar, America’s Constitution: A Biography 363 
(2005).

C. The Fifteenth Amendment Was 
Written to Give Congress the Power to 
Ensure Enjoyment of the Right to Vote 
Free From Racial Discrimination.

The culmination of the Amendments to the 
Constitution designed to guarantee personal rights 
and outlaw state-sponsored racial discrimination was 
the Fifteenth Amendment. In writing into the 
Constitution the “fundamental principle” that state 
and federal governments “may not deny or abridge 
the right to vote on account of race,” Rice, 528 U.S. at 
512, the framers explained that the Fifteenth 
Amendment would be “the capstone in the great 
temple of American freedom,” Cong. Globe, 40th Cong., 
3rd Sess. 724 (1869), that would “make every citizen 
equal in rights and privileges.” Id. at 672. Once 
again, a broad congressional power to ensure that the 
right to vote was actually enjoyed was critical to the 
Amendment.

During the debates on the Fifteenth 
Amendment, leading framers, such as John Bingham, 
made clear that the Amendment’s Enforcement 
Clause, like that of the Thirteenth and Fourteenth 
Amendments, gave Congress a broad “affirmative 
power” to secure the right to vote. Id. at 727; id. at 
1625 (“Congress . . . under the second clause of this 
amendment” has the power to “impart by direct 
congressional legislation to the colored man his right 
to vote. No one can dispute this.”). Without a broad 
enforcement power, the framers feared that the



24

constitutional guarantee would not be fully realized. 
“Who is to stand as the champion of the individual 
and enforce the guarantees of the Constitution in his 
behalf as against the so-called sovereignty of the 
States. Clearly, no power but that of the central 
government is or can be competent for their 
adjustment. . . .” Id. at 984.

In 1870, the year the Fifteenth Amendment 
was ratified, Congress invoked the Amendment’s 
Enforcement Clause in support of voting rights 
legislation, reflecting the framers’ judgment that the 
Fifteenth Amendment is “ample and full and clothes 
Congress with all the power to secure the end which 
it declares shall be accomplished.” Cong. Globe, 41st 
Cong., 2nd Sess. 3563 (1870). The Enforcement 
Clause, Senator Oliver Morton explained, “intended 
to give Congress the power of conferring upon the 
colored man the full enjoyment of his right. We so 
understood it when we passed it. . . . [T]he second 
section was put there . . .  for the purpose of enabling 
Congress to take every step that might be necessary 
to secure the colored man in the enjoyment of these 
rights.” Id. at 3670; id. at 3655 (explaining that the 
“intention and purpose” of the Fifteenth 
Amendment’s Enforcement Clause was to “secure to 
the colored man by proper legislation the right to go 
to the polls and quietly and peacefully deposit his 
ballot there”); id. at 3663 (“Congress has a right by 
appropriate legislation to prevent any state from 
discriminating against a voter on account of his 
race . . . .”); id. at app. 392 (explaining that “some 
stringent law is necessary to neutralize the deep- 
rooted prejudice of the white race there against the 
negro”). See also Cong. Rec., 43rd Cong., 1st Sess.



25

4085 (1874) (observing that the Enforcement Clause 
of the Fifteenth Amendment was added to allow 
Congress “to act affirmatively” and ensure that “the 
right to vote should be enjoyed”).

Both supporters and opponents alike 
recognized that the Fifteenth Amendment’s 
Enforcement Clause significantly altered the balance 
of power between the federal government and the 
states, giving Congress broad authority to secure the 
right to vote to African Americans and to eradicate 
racial discrimination in the electoral process. 
Congressional opponents of the Fifteenth 
Amendment objected that “when the Constitution of 
the United States takes away from the State the 
control over the subject of suffrage it takes away 
from the State the control of her own laws upon a 
subject that the Constitution of the United States 
intended she should be sovereign upon.” Cong. Globe, 
40th Cong., 3rd Sess. at 989. Opponents of the 
Fifteenth Amendment, both in Congress and in the 
states, worried that Congress would use its 
enforcement power to “send their satraps into every 
election district in this country,” 41st Cong., 2nd Sess. 
255 (1869), and put into effect “registry laws and 
laws regulating elections at our doors, enacted by a 
power we cannot reach or control,” 2 Journal of the 
State of Michigan House of Rep. 1101 (Mar. 5, 1869). 
In their view, “nothing could be more loose and 
objectionable than the clause which authorizes 
Congress to enforce the restraint upon the States by 
‘appropriate legislation’ . . . .  Under this phraseology, 
Congress is made the exclusive judge . . . .” Journal 
of the Senate, State of California, 18th Sess. 150 
(1869-70).



26

These concerns over state sovereignty were 
flatly rejected by the framers of the Fifteenth 
Amendment and the American people, who explicitly 
conferred on Congress the power to secure the right 
to vote free from racial discrimination. In giving 
Congress the power to remedy voting discrimination 
by the states, the Fifteenth Amendment specifically 
limited state sovereignty. As Senator Carl Schurz 
explained during debates over Congress’s first 
attempt to enforce the Fifteenth Amendment:

[T]he Constitution of the United States has been 
changed in some most essential points; that 
change does amount to a great revolution . . . . 
The revolution found the rights of the individual 
at the mercy of the States; it rescued them from 
their arbitrary discretion, and placed them 
under the shield of national protection. It made 
the liberty and rights of every citizen in every 
State a matter of national concern.

Cong. Globe, 41st Cong., 2nd Sess. at 3607-08.

III. The History of the Fifteenth Amendment 
Demonstrates that “Appropriate” 
Enforcement Legislation Includes Broad, 
Prophylactic Regulation to Protect the 
Right to Vote.

Most relevant here, the history of the Fifteenth 
Amendment demonstrates that Congress’s broad 
legislative power was particularly important to 
secure the right to vote free from racial 
discrimination. Because states extensively regulate 
elections, including by regulating voter qualifications 
and drawing district lines, states hostile to the



27

Fifteenth Amendment could easily use their power 
over the election system to deny or abridge the right 
to vote free from discrimination, as they often did. 
See Eric Foner, Reconstruction: America’s 
Unfinished Revolution, 1863-1877, at 590-91 (1988) 
(discussing efforts to defy the Fifteenth Amendment 
through racial gerrymandering and adoption of 
discriminatory voting laws); Shaw, 509 U.S. at 640 
(discussing racial gerrymandering enacted in the 
1870s to dilute the right of African Americans to 
vote).

Accordingly, the framers of the Fifteenth 
Amendment specifically recognized that a broad 
legislative power to protect the right to vote against 
all forms of racial discrimination—both heavy- 
handed and subtle—was critical to ensuring “the 
colored man the full enjoyment of his right,” Cong. 
Globe, 41st Cong., 2nd Sess. 3670 (1870), and 
“preventing] any state from discriminating against a 
voter on account of his race . . . .” Id. at 3663. As the 
debates over the Fifteenth Amendment and 
contemporaneous congressional enforcement
legislation show, the framers were well aware that 
Congress needed broad authority to enact
prophylactic legislation to root out all forms of racial 
discrimination in voting.

For example, during the debates on the 
Fifteenth Amendment, the framers observed that 
“[i]t is difficult by any language to provide against 
every imaginary wrong or evil which may arise in the 
administration of the law of suffrage in the several 
States,” emphasizing that “ [w]hat we desire to reach” 
is “to insure by constitutional enactment . . . the



28

right of suffrage” of citizens without regard to race. 
Cong. Globe, 40th Cong., 3rd Sess. 725 (1869). In the 
months following ratification of the Fifteenth 
Amendment, Congress recognized the grim reality 
that many states would pursue novel methods of 
disenfranchising African Americans on account of 
their race. Highlighting the importance of providing 
“proper machinery . . .  for enforcing the fifteenth 
amendment,” Senator William Stewart explained 
that “it is impossible to enumerate over-specifically 
all the requirements that might be made as 
prerequisites for voting . . . .  The States can invent 
just as many requirements [for voting] as you have 
fingers and toes. They could make one every day.” 
Cong. Globe, 41st Cong., 2nd Sess. 3658 (1870). 
“There may be a hundred prerequisites invented by 
the States,” id., “a hundred modes whereby [the 
colored man] can be deprived of his vote.” Id. at 3657; 
see also id. at 3568 (noting “it is our imperative 
duty . . .  to pass suitable laws to enforce the fifteenth 
amendment” because, without them, “the fifteenth 
amendment will be practically disregarded in every 
community where there is a strong prejudice against 
negro voting”). The only means to ensure minority 
voting rights, the framers recognized, “are to be 
found in national legislation. This security cannot be 
obtained through State legislation,” where “the laws 
are made by an oppressing race . . . .” Id. at app. 392.

The framers recognized that the right to vote 
would actually be enjoyed by the newly freed slaves 
only if Congress had the authority to stamp out and 
deter the full range of racial discrimination in voting, 
including by enacting prophylactic regulation to 
ensure the right to vote was actually enjoyed. As



29

Senator Schurz commented, under the Fifteenth 
Amendment, “[a] State shall have full power to do 
that which is right in its own way; but it is prohibited 
from doing that which is wrong in any way.” Id. at 
3608.

IV. This Court’s Precedents Establish that 
the Constitution Gives Congress Broad 
Power to Prevent and Deter Racial 
Discrimination in Voting.

A. The Court Has Consistently Held 
that McCulloch’s Broad 
Construction of Congressional 
Power Applies to Legislation 
Enforcing the Fifteenth
Amendment.

Consistent with the text and history discussed 
above, this Court has consistently held that 
McCulloch’s broad interpretation of Congress’s power 
under the Necessary and Proper Clause applies 
equally to legislation enforcing the right to vote free 
from discrimination secured by the text of the 
Fifteenth Amendment. “Congress’ authority under § 
2 of the Fifteenth Amendment . . . [is] no less broad 
than its authority under the Necessary and Proper 
Clause.” City of Rome v. United States, 446 U.S. 156, 
174-75 (1980). Under these cases, broad McCulloch- 
style deference applies to the means Congress adopts 
to enforce the constitutional right to vote free from 
racial discrimination. The preclearance requirement 
contained in Section 5 of the Voting Rights Act seeks 
to enforce the core purpose of the Fifteenth 
Amendment, and the nearly unanimous, bipartisan



30

decision of Congress to re-authorize it falls squarely 
within Congress’s broad power to enforce the 
Fifteenth Amendment.

In South Carolina v. Katzenhach, 383 U.S. 301 
(1966), the Court applied McCulloch deference in 
holding that the preclearance and coverage 
provisions of the Voting Rights Act—the same 
provisions Shelby County attacks here—were 
“appropriate legislation” within Congress’s Fifteenth 
Amendment enforcement power. “As against the 
reserved powers of the States, Congress may use any 
rational means to effectuate the constitutional 
prohibition of racial discrimination in voting.” Id. at 
324. As the Katzenhach Court explained, “[b]y 
adding th[e] authorization [for congressional 
enforcement in Section 2], the framers indicated that 
Congress was to be chiefly responsible for 
implementing the rights created. . . . Congress has 
full remedial powers to effectuate the constitutional 
prohibition against racial discrimination in voting.” 
Id. at 325-26.

Based on this text and history, the Court held 
that the “basic test” set forth by Chief Justice 
Marshall in McCulloch “concerning the express 
powers of Congress” applied, and rejected “South 
Carolina’s argument that Congress may 
appropriately do no more than to forbid violations of 
the Fifteenth Amendment in general terms. . . . 
Congress is not circumscribed by any such artificial 
rules under § 2 of the Fifteenth Amendment.” Id. at 
326, 327; cf. Jones, 392 U.S. at 439 (explaining that 
the Enforcement Clause of the Thirteenth 
Amendment “clothed ‘Congress with power to pass all



31

laws necessary and proper for abolishing all badges 
and incidents of slavery in the United States’”) 
(quoting Civil Rights Cases, 109 U.S. 3, 20 (1886)); 
James Everard’s Breweries v. Day, 265 U.S. 545, 558- 
559 (1924) (applying McCulloch to analyze
constitutionality of congressional action under the 
Enforcement Clause of the Eighteenth Amendment).

Shelby County contends that Katzenbach is a 
relic of the 1960s that must be confined to its facts, 
but this Court’s cases have refused to impose such 
artificial hmits on the power of Congress to enforce 
the Fifteenth Amendment’s promise of voting 
equality. Despite considerable progress in the 
towards fulfilling the command of the Fifteenth 
Amendment, this Court has reaffirmed Katzenbach’s 
reasoning three separate times, upholding Congress’s 
renewal of the preclearance requirement in 1970, 
1975, and 1982. As these cases hold, “Congress has 
the constitutional authority to designate covered 
jurisdictions and to guard against changes that give 
rise to a discriminatory effect in those jurisdictions,” 
Lopez v. Monterrey County, 525 U.S. 266, 283 (1999), 
because “the Act’s ban on electoral changes that are 
discriminatory . . .  is an appropriate method of 
promoting the purposes of the Fifteenth
Amendment.” City of Rome, 446 U.S. at 177. Accord 
Georgia v. United States, 411 U.S. 526, 535 (1973).

The text, of course, gives Congress the 
authority to select the means of enforcing 
constitutional rights; it does not eliminate the 
requirement that Congress act to “enforce” rights 
protected by the Constitution. In order to ensure 
that Congress is actually enforcing, not inventing,



32

new constitutional rights, this Court in City of Boerne 
v. Flores, 521 U.S. 507 (1997), refined the McCulloch 
standard, applying a congruence and proportionality 
test to smoke out congressional efforts to establish 
new rights in the guise of enforcement. But these 
concerns do not have the same force when it comes to 
the Fifteenth Amendment’s focused and express 
prohibition on racial discrimination in voting. In the 
text of the Constitution itself, the Fifteenth 
Amendment protects against governmental efforts to 
deny or abridge the right to vote on account of race.

Consistent with the text’s plain language, 
Supreme Court precedent dictates that Congress has 
broad leeway to design remedies to protect against 
discrimination based on race—the most 
constitutionally suspect form of discrimination—in 
order to protect the right to vote, which has always 
been recognized as a fundamental right of the 
highest order. “As against the reserved powers of the 
States, Congress may use any rational means to 
effectuate the constitutional prohibition of racial 
discrimination in voting.” Katzenbach, 383 U.S. at 
324. As Justice Scalia has recognized, “[gjiving 
[Congress] . . . more expansive scope with regard to 
measures directed against racial discrimination by 
the States accords to practices that are distinctly 
violative of the principal purpose of the [Civil War] 
Amendment[s] . . . .” Tennessee v. Lane, 541 U.S. 509, 
561 (2004) (Scalia, J., dissenting); see also Oregon v. 
Mitchell, 400 U.S. 112, 129 (1970) (opinion of Black, 
J.) (“Where Congress attempts to remedy racial 
discrimination under its enforcement powers, its 
authority is enhanced by the avowed intentions of the 
framers of the Thirteenth, Fourteenth, and Fifteenth



33

Amendments.”)- See Br. of Fed. Respondent at 17-19; 
Br. of Cunningham Resp-Intervenors at 5.

Boerne itself recognized that when Congress 
enforces recognized, fundamental constitutional 
rights—such as the right to vote expressly 
enumerated in the Fifteenth Amendment and 
protected as well by this Court’s equal protection 
precedents—“[legislation which deters or remedies 
constitutional violations can fall within the sweep of 
Congress’ enforcement power even if in the process it 
prohibits conduct which is not itself unconstitutional 
and intrudes into ‘legislative spheres of autonomy 
previously reserved to the States.’” Boerne, 521 U.S. 
at 518 (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 
455 (1976)). As history shows, the Fifteenth 
Amendment was designed to radically alter 
constitutional principles of federalism, giving to 
Congress a broad sweeping power to ensure that the 
right to vote free from racial discrimination was 
actually enjoyed by all Americans. While “the Voting 
Rights Act, by its nature, intrudes on state 
sovereignty,” “ [t]he Fifteenth Amendment permits 
this intrusion.” Lopez, 525 U.S. at 284-85.

Indeed, Boerne is best understood as a 
refinement of long established fundamental 
principles giving Congress broad authority to choose 
the means of remedying violations of constitutional 
guarantees, designed to ensure that the “object of 
valid [enforcement] legislation [is] the ... remediation 
or prevention of constitutional violations.” College 
Sav. Bank v. Florida Prepaid Postsecondary Educ. 
Expense Bd., 527 U.S. 666, 672 (1999). Since the 
function of Boerne’s congruence and proportionality



34

test is to distinguish “measures that remedy or 
prevent unconstitutional actions” and “measures that 
make a substantive change in the governing law,” 
Boerne, 521 U.S. at 519, when Congress enforces an 
expressly enumerated constitutional right, such as 
the Fifteenth Amendment’s prohibition on racial 
discrimination in voting, “Congress ought to have 
wide latitude in choosing among enforcement 
remedies.” Calabresi & Stabile, 11 U. PA. J. CONST. L. 
at 1436. As the Constitution’s text reflects, “[t]he 
Fifteenth Amendment empowers Congress, not the 
Court, to determine . . . what legislation is needed to 
enforce it.” Northwest Austin Mun. Util. Dist. No. 1 v. 
Holder, 557 U.S. 193, 205 (2009).

B. The Court Has Consistently Held 
that the Fifteenth Amendment 
Permits Congress to Single Out 
Jurisdictions With Proven 
Histories of Racial Discrimination 
in Voting for Prophylactic 
Regulation.

Consistent with the text and history of the 
Fifteenth Amendment, this Court has also held that 
prophylactic legislation that targets states with a 
long history of racial discrimination in voting for 
special, more stringent remedies is “appropriate 
legislation” within the scope of the Fifteenth 
Amendment’s Enforcement Clause. In South 
Carolina v. Katzenbach, this Court upheld the 
preclearance requirement of the Voting Rights Act, 
explaining that “[i]n acceptable legislative fashion, 
Congress chose to limit its attention to the 
geographic areas where immediate action seemed



35

necessary.” Katzenbach, 383 U.S. at 328. Having 
found that “substantial voting discrimination 
presently occurs in certain sections of the country 
and knowing “no way of accurately forecasting where 
the evil might spread in the future,” Congress’s 
decision to focus on “a small number of States and 
political subdivisions which in most instances were 
familiar to Congress by name” was a “permissible 
method of dealing with the problem.” Id.

This Court in Katzenbach recognized that the 
Constitution does not require Congress to treat the 
States all alike, or ignore a history of racial 
discrimination in voting in certain States, when it 
enforces the Fifteenth Amendment’s command of 
voting equality. “[T]he doctrine of the equality of 
states . . . does not bar th[e] [VRA’s] approach, for 
that doctrine applies only to the terms upon which 
States are admitted to the Union, and not to the 
remedies for local evils which have subsequently 
appeared.” Id. at 328-29; see also Northwest Austin, 
557 U.S. at 203. Since the doctrine of equality of 
states is not a textual limit on the enumerated 
legislative powers of Congress, but rather is rooted in 
the fact that, since the Constitution’s founding, new 
states have been admitted to the nation on an equal 
footing with the original states, see Coyle v. Smith, 
221 U.S. 559, 566-67 (1911), “the principle of equality 
is not disturbed by a legitimate exertion of the 
United States of its constitutional power . . . .” 
United States v. Chavez, 290 U.S. 357, 365 (1933); see 
also Coyle, 221 U.S. at 568 (distinguishing invalid 
conditions on admission of new states from 
“affirmative legislation intended to operate in futuro,



36

which are within the scope of the conceded powers of 
Congress over the subject”).

Indeed, this Court has always recognized that 
the preclearance provision of the Voting Rights Act is 
the quintessential example of “appropriate 
legislation” enforcing the Fifteenth Amendment’s 
command of voting equality because it only applies to 
jurisdictions with longstanding, proven histories of 
racial discrimination in voting. Rather than applying 
the preclearance requirement “equally to cases 
arising in states which have the justest laws 
respecting the personal rights of citizens . . .  as to 
those which arise in states that may have violated 
the prohibitions of the amendment,” Civil Rights 
Cases, 109 U.S. at 14, Congress “confined 
[preclearance] to those regions of the country where 
voting discrimination had been most flagrant” and 
“limited [it] to those cases in which constitutional 
violations were most likely.” Boerne, 521 U.S. at 532- 
33. As this Court has affirmed on many occasions, by 
providing a remedy “directed only to those States in 
which Congress found that there had been 
discrimination,” United States v. Morrison, 529 U.S. 
598, 627 (2000), Congress appropriately tailored the 
Voting Rights Act “to respond to the widespread and 
persisting deprivation of constitutional rights 
resulting from this country’s history of racial 
discrimination.” Boerne, 521 U.S. at 526.

•k k k k k k k

Whether this Court applies the McCulloch 
standard reflected in the text of Section 2 of the 
Fifteenth Amendment or Boerne s refinement of it,



37

the result is the same: Congress’s 2006
reauthorization of the Act’s preclearance requirement 
is “appropriate legislation” enforcing the Fifteenth 
Amendment.

In extending the preclearance requirement of 
the Voting Rights Act in 2006, Congress acted to 
protect against racial discrimination in voting—the 
single core purpose of the Fifteenth Amendment. 
Acting within its wide discretion to select appropriate 
means, Congress conducted an extensive inquiry into 
the current state of racial discrimination in voting 
and permissibly determined that prophylactic 
measures were “current[ly] needfed],” Northwest 
Austin, 557 U.S. at 203, to protect against 
unconstitutional racial discrimination in the 
administration of elections persisting in the covered 
jurisdictions.

As it had in 1965, when the Act was first 
passed, and in 1970, 1975, and 1982, when
preclearance was renewed, Congress found that 
“substantial voting discrimination presently occurs in 
certain sections of the country, and it knew no way of 
accurately forecasting where the evil might spread 
elsewhere in the future.” Katzenbach, 383 U.S. at 
328. Choosing to limit its attention to the geographic 
areas where federal remedies were most pressing, 
Congress continued in effect the preclearance 
requirement and its associated coverage formula— 
one of the American law’s most successful civil rights 
provisions—in order to prevent and deter state- 
sponsored racial discrimination in voting. In so doing, 
Congress found that the Act’s burdens—while by no 
means insignificant—had been lessened by decades



38

of familiarity with the preclearance process and the 
availability of bailout, and were, in any event, fully 
justified by the need to ensure continued progress 
toward the promise of voting equality commanded by 
the Fifteenth Amendment. Cf. Dickerson v. United 
States, 530 U.S. 428 (2000).

By an overwhelming margin—98-0 in the 
Senate and 390-33 in the House—bipartisan 
majorities agreed that the preclearance provision of 
the historic Voting Rights Act continued to serve the 
critical purpose of preventing and deterring racial 
discrimination in voting that persist in the covered 
jurisdictions. As the comprehensive opinions below 
demonstrate, these findings are amply supported by 
the massive record Congress assembled of voting 
discrimination in all phases of the electoral process. 
Pursuant to the original understanding of the 
Fifteenth Amendment’s Enforcement Clause—that 
Congress would have broad power to determine what 
is appropriate to protect the right to vote free from 
racial discrimination—the Court should defer to 
Congress’s near-unanimous judgment.



39

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted,

Do u g las  T. Ken d all  
E lizabeth  B. W yd ra*
* Counsel of Record 
Dav id  H. Ga n s  
CONSTITUTIONAL 
ACCOUNTABILITY CENTER 
1200 18th St., NW, Suite 501 
Washington, D.C. 20036 
(202) 296-6889
ehzabeth@theusconstitution.org

Counsel for Amici Curiae

February 1, 2013

mailto:ehzabeth@theusconstitution.org




No. 12-96

3} n tinje

upreme Court of tfje fflmteb ii>tate£

Shelby County, Alabama,
Petitioner,

v.

Eric Holder, Jr., A ttorney General, et al.,
Respondents.

RULE 33.1(h) CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the Brief A m ici C uriae of 

Constitutional Law Professors and Constitutional Accountability Center In Support of 

Respondents contains 8,771 words, excluding the parts of the document that are exempted by 

Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on February 1, 2013.

Counsel of Record for A m ici C uriae



No. 12-96

3ht tBJie

Supreme Court of tf)e fflntteb States

Shelby County, A labama,
Petitioner,

v.

Eric Holder, Jr., Attorney General, et al .,
Respondents.

CERTIFICATE OF SERVICE

I, Elizabeth B. Wydra, do hereby declare that on February 1, 2013, as required by 

Supreme Court Rule 29.5, I have served by first-class mail, postage pre-paid, the Brief A m ici 

C uriae of Constitutional Law Professors and Constitutional Accountability Center in Support of 

Respondents on counsel for each party to the above proceeding as follows:

Bert W. Rein 
Wiley Rein LLP 
1776 K Street, N.W.
Washington, DC 20006 
brein@wileyrein.com

Counsel o f Record for Petitioner Shelby County, Alabama

Donald B. Verrilli, Jr.
Solicitor General
United States Department of Justice 
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001 
SupremeCtBriefs@usdoj.gov

Counsel o f Record for Respondent Eric H. Holder, 
Attorney General of the United States

mailto:brein@wileyrein.com
mailto:SupremeCtBriefs@usdoj.gov


Debo P. Adegbile
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
dadegbile@naacpldf.org

Counsel o f Record for Respondent-Intervenors 
Earl Cunningham, et al.

Jon M. Greenbaum
Lawyers’ Committee for Civil Rights Under Law 
1401 New York Avenue, NW, Suite 400 
Washington, DC 20005 
jgreenbaum@lawyerscommittee.org

Counsel o f Record for Respondent-Intervenor Bobby Lee Harris 

Laughlin McDonald
American Civil Liberties Union Foundation 
230 Peachtree Street, NW, Suite 1440 
Atlanta, GA 30303-1227 
lmcdonald@aclu.org

Counsel o f Record for Respondent-Intervenors 
Bobby Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee,
Kenneth Dukes, and The Alabama State Conference of the 
National Association for the Advancement of Colored People, Inc.

I declare under penalty o f  perjury that the foregoing is true and correct. 

Execute^011 February 1, 2013.

mailto:dadegbile@naacpldf.org
mailto:jgreenbaum@lawyerscommittee.org
mailto:lmcdonald@aclu.org