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

A large body of academic scholarship accuses the Rehnquist Court of “undoing the Second Reconstruction,” just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with “conservative judicial activism.” It posits that the present Court wants to dismantle decades’ worth of federal antidiscrimination measures that are aimed at the “reconstruction” of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to reconstruct the former Confederacy. And it maintains that both Courts’ willingness to invalidate federal statutes and limit congressional power evinces the view that much federal civil-rights legislation represents an impermissible redistributive project and an unconstitutional interference with state and local autonomy. This Article argues that the critique that the Rehnquist Court is “undoing the Second Reconstruction” is too simple, but not only because it fails to account for last Term’s relatively “moderate” decisions. A parallel indeed exists between the Rehnquist Court’s response to the Second Reconstruction and the Waite Court’s reaction to the First. Decisions by both Courts, however, respond to Reconstruction not with undifferentiated hostility, but instead in a more complex manner. This Article attempts to show that these decisions posit a two-tiered vision of Congress’s enforcement powers under the Reconstruction-era Amendments. Under this vision, Congress possesses broad discretion to free state political processes of racial discrimination, but enjoys far more limited authority to combat other forms of discrimination at the state and local level.