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A Decision That Cannot Be Defended

[ 79 ] June 27, 2013 |

Ilya Shapiro has a somewhat longer piece attempting to defend Shelby County v. Holder. Along with Roberts’s majority opinion, it’s as effective an argument against the outcome of the case as any rebuttal could be. Let me start with what Shapiro doesn’t mention:

  • Section 2 of the 15th Amendment
  • Any constitutional provision the Voting Rights Act violates

These omissions are, in and of themselves, sufficient to dispose of Shapiro’s argument.  There is no free standing right to “state sovereignty” protected by the Constitution.  States are sovereign except when their sovereignty is superseded by an exercise of power delegated to the federal government.  Since preventing racial discrimination in voting is unambiguously an area of federal authority, there’s by definition no “state sovereignty” being abridged.   The federal government has the power to enforce the 15th Amendment, and this power does not vanish if the racial discrimination being addressed is less severe than Jim Crow.  Nor is there any requirement that Congress use any set of data to legislate when exercising its valid authority; again, this is smuggling an implicit narrow tailoring requirement into a context in which it’s utterly inappropriate.

Although nothing more really needs to be said, there’s some additional silliness that’s worth noting.  Shapiro does refer to the 15th Amendment…to argue that Section 5 “flies in the face of the 15th Amendment’s requirement that all voters be treated equally.”Well, first of all, what the 15th Amendment actually says is “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”  This is fatal for Shapiro’s argument, given that the Voting Rights Act does not in fact discriminate on the basis of race.  Shapiro is not only ignoring Section 2; he’s literally arguing that the 15th Amendment prevents itself from being enforced. Admittedly, the 14th Amendment does impose a broader requirement to treat voters equally, but this doesn’t help Shapiro since again the Voting Rights Act does not violate the equal protection of the laws.  The 14th requires individuals to be treated equally; it doesn’t require states to be treated equally.  Arguing that the Voting Rights Act violates whichever of the Civil War amendments you randomly choose is like arguing that civil rights laws violate the 14th or 5th Amendment because they abridge the right of employers who discriminate to be treated identically to employers who don’t.  (Sadly, I suspect that Shapiro believes this too; it’s hard to play reductio ad absurdum with a conservertarian.  Let’s all remember to be happy that Barry Goldwater wasn’t president in 1964.)

And, of course, the equal treatment issue is a red herring, because Shapiro ultimately concludes that the Thomas was right and the Court should have just ruled Section 5 unconstitutional.   So even a national preclearance requirement that treated the states equally wouldn’t be constitutional, and equal treatment doesn’t actually have anything to do with Shaprio’s argument.  The real argument, again, is that the real powers of Section 2 of the 15th Amendment should be trumped by imaginary rights to “state sovereignty,” and again to re-state the argument is to refute it.  (Shapiro at least spares us Roberts’s made-up right to “equal state sovereignty,” but alas he doesn’t replace that made-up right with anything else.)  And, like Roberts’s argument, the basic thrust is premised on the utterly absurd premise that legislation directed at a legitimate end suddenly becomes unconstitutional if addresses the ends too effectively.

Sometimes a correct conclusion is buttressed by an opinion that leaves a lot to be desired.  One need only go back to U.S. v. Windsor yesterday to see that — not only any other member of the majority coalition but hundreds of legal scholars could have written a more persuasive and coherent defense of the unconstitutionality of DOMA than Kennedy’s majority opinion.  In the case of Shelby, though, the majority opinion was terrible simply because there are no good arguments to be made in defense of the holding.

  • max

    (Sadly, I suspect that Shapiro believes this too; it’s hard to play reductio ad absurdum with a conservertarian. Let’s all remember to be happy that Barry Goldwater wasn’t president in 1964.)

    {reads column} Well, that was a breezy hop, skip and a jump over Jim Crow.

    And, of course, the equal treatment issue is a red herring, because Shapiro ultimately concludes that the Thomas was right and the Court should have just ruled Section 5 unconstitutional.

    He doesn’t even say why. I could understand the argument if Roberts had simply said that if they were going to do preclearance, they had to preclear everybody. Shapiro is arguing that they can’t do that but they can keep section 2, which I am pretty sure is incoherent. (If this state sovereignty business has anything to it (not with regards to federal elections, and not really in regards to state elections) then I don’t see how section 2 gets in there either. And if section 2 can survive, I don’t see what the problem with section 5 is, either.)

    Weird watching all these Yankees defend the South from the stain of being forced to do the right thing.

    [‘I look forward to the columns arguing in defense of the new discriminatory maps they’re cooking up in the Confederacy.’]

  • But the VRA does discriminate on the basis of race — it prevents whites from preventing other races from voting. Typical intolerant liberals not tolerating intolerance, liberals are the real racists, word without end, amen.

    Also, as Ann Althouse pointed out, the real outrage over the decision is the blatant anti-Italian bigotry against Sam Alito. Whee!

    • Scott Lemieux

      the real outrage over the decision is the blatant anti-Italian bigotry against Sam Alito.

      I wish I could think you were making that up, I really do.

  • mds

    The Constitution: A One-Act Play

    [Curtain rises on TENTH AMENDMENT, standing on otherwise dark stage]

    TENTH AMENDMENT: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    [Cloud of smoke from insufficiently burnt Georgia is released from stage left]

    [Enter FIFTEENTH AMENDMENT from stage left]

    FIFTEENTH AMENDMENT: Hi, there. I’m part of the Constitution, and I’m here to delegate powers to the US government.

    TENTH AMENDMENT: All righty, then.

    [Enter SCHMIBERTARIAN T. FUCKWIT in great haste from stage far right]

    SCHMIBERTARIAN T. FUCKWIT: Hang on, where do you get off calling the Fifteenth Amendment part of the Constitution? And besides, “Constitution” is more properly pronounced “Articles of Confederation.”

    [Exeunt TENTH and FIFTEENTH AMENDMENT, stage right, stepping on face of SCHMIBERTARIAN T. FUCKWIT in passing]


    • Jerry Vinokurov

      I’d pay money to see that.

    • Scott Lemieux

      Yes, but the 10th Amendment supersedes the 15th, because of originaltextulstrictconstructionism.

      • Brandon

        10 comes before 15, duh.

      • The 15th is only really 3/5th of an amendment anyways so no biggie.

        • Bill Murray

          really it only added 2/5 to the blacks and 2/5 of 15 is 6, so the 10th should supercede

          • Another Anonymous

            That is just as awesome a mathematical statement as MDS’s is a dramatical one.

    • TT

      The states are “sovereign” when they are controlled by the Republican Party and enact the Republican policy agenda. They are not sovereign when controlled by the Democratic Party and enact the Democratic policy agenda. This is especially true when a Democrat has the effrontery to get elected president.

    • Another Anonymous

      I can certainly understand why Schmibertarian T. Fuckwit decided he’d get farther in life changing his name to “John Roberts.”

  • Lex

    Even if nothing else good comes from this, can we please stop pretending that American society is a meritocracy? My god, the level of DERP in Shapiro’s work could drown a skyscraper, and that’s only what I can see without a law degree.

    • sparks

      Henceforth, America is a derpocracy.

  • rea

    A couple of noteworthy additional points.

    Shapiro assets that the preclearance list is based on 40-year old data, ignoring (like Roberts) the existance of a “bail out” mechnism for jurisdictions that demonstrate a 10-year history of good behavior.

    Shapiro also slams Congress for reenacting the statute in 2006 without heeding the Court’s warning that the preclearance provisions needed to be updated. But of course, the warning came in 2009, after reenactment.

    • L2P

      I think he believes Congress was warned by Plessy v. Ferguson.

      • dl


    • Joe

      Rick Hasen noted he was worried even in ’06 that the “congruent and proportionality” principles in place at that time made the re-authorization problematic.

      But, that is mighty stupid (“wrote in 2009” … “yet … in 2006”) … does he believe in time travel?

      • rea

        does he believe in time travel?

        As someone who has traveled all the way to 2013 from 1954, I can assure you that there is such a thing as time travel. But unfortunately it doesn’t work backwards.

    • swearyanthony

      You’re so silly. Libertarianism is for white people, not the mud-races.

    • Murc

      Shapiro assets that the preclearance list is based on 40-year old data, ignoring (like Roberts) the existance of a “bail out” mechnism for jurisdictions that demonstrate a 10-year history of good behavior.

      You don’t even need to note the bail-out mechanism; the proper response to “the preclearance list is based on bad data” is “yeah, and? Congress is under no obligation to base it’s laws on good information. It makes bad laws that are constitutional all the time.”

      The VRA is of course not bad law.

      • Bill Murray

        further Congress did a pretty thorough examination of this for the 2006 renewal and found the provisions still important

  • L2P

    It IS a little surprising that a defense of a decision made under the 15th Amendment wouldn’t reference the 15th Amendment. I was more struck by this, though:

    In practice, however, Congress will be hard-pressed to enact any new coverage formula because the pervasive, systemic discrimination in voting that justified a deviation from the normal constitutional order is now gone.

    I, for one, am glad to know that pervasive, systemic discrimination in voting is not gone! However, that ALSO has nothing to do with the 15th Amendment, which says that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Even if Ilya WAS right on the facts (and there’s a few handy admissions from state legislatures that he’s absolutely wrong), pervasive, systemic discrimination isn’t required for the Feds to drop the hammer.

    • commie atheist

      Didn’t “normal constitutional order” limit the vote to land-owning white guys? I mean, if we’re going to be all originalist and shit.

  • sibusisodan

    From Shapiro:

    Sections 4 and 5, meanwhile, were to be temporary tools that supplemented Section 2.

    what? Any evidence for this?

    • Bill Murray

      what? Shapiro’s butt not a good enough source for you?

    • Scott Lemieux

      And in addition, even if it’s true its irrelevant. Section 2 doesn’t have a rainbow clause.

      • Bill Murray

        yet, you don’t mention unicorn or ponies clauses, which could be in the supers secret New! Republican Constitution now with more articles and a bigger confederation

      • sibusisodan

        Rainbow clause? I’ve heard of sunset clause, but are there a spread of other meteorologically-named legal clauses too?

        • Rainbow Clause gives out gay wedding presents to all the boys and girls

          • Marek


    • MikeJake

      Given there’s a bailout provision, and considering that there a bunch of jurisdictions that haven’t managed to avail themselves of the bailout provision, I’d say those “temporary tools” are still needed.

      • catclub

        Funny, that. Maybe Congress even noticed it all the times they held hearings before renewing the VRA.

    • Anonymous

      The whole law was and is temporary, isn’t it? That’s why it has to be reauthorized every however many years.

      • Timb

        In the sense that almost ALL laws are temporary?

  • Incontinentia Buttocks

    A little bleg: a number of my (fellow lefty academic) friends are making the argument that the rulings in Shelby and Windsor are at least consistent. This argument seems to me to be totally wrong (as evidenced, in part, by the rather different majorities in the two cases) and based, at least in part, on not taking the full measure of the hackery of the Shelby decision. The root difference, of course, is the 15th Amendment, which gives Congress an explicit grant of power in the area of voting rights that it doesn’t have in the area of marriage. There are of course a ton of more fine-grained differences (the VRA has a rational basis; DOMA does not). But the fact of the 15th Amendment forced the majority in Shelby to invent Constitutional doctrines (and avoid the Constitution itself) in ways that Kennedy didn’t have to.

    So here’s the bleg: has anyone yet written a piece explicitly shooting down the at-least-the-court-was-consistent meme?

    • Green Caboose

      I think you probably just described the rationale behind the timing of the two decisions.

      1. kill off the VRA with a poorly-reasoned decions obviously intended to help one political party over the other (i.e. Bush v. Gore part II)

      2. wait a day for initial reaction

      3. kill off DOMA and prop 8 so that (1) is quickly swept under the rug

      • sparks

        This is what I thought would happen, especially after I read the VRA ruling.

    • Joe

      Might help. The “consistent” bit isn’t too hard. On some level, lots of things are ‘consistent’ somehow. Both “consistently” declare things passed by large congressional majorities unconstitutional. Big deal. Other rulings uphold. Is Koresmatsu consistent to Katzenbach?

    • Breadbaker

      I think that this is what Roberts himself is trying to do in his dissent in Windsor. It basically says “I disagree with Kennedy but at least he is using my new jurisprudence, as you can see the DNA comes right out of my own ass.”

    • Manny Kant

      So these people are saying that of the 9 justices, only Anthony Kennedy was consistent? That seems remarkably unlikely.

      • Incontinentia Buttocks

        One of the tells that the consistency meme isn’t a very good argument is that the two times I’ve seen it made it’s been presented as “at least the majority is consistent,” which is either very dumb or not very honest. As you say, the only consistent one (in this account of consistency) is Kennedy.

        See also the various columns (e.g. by Michael Lerner at Truthout and Paul Butler at the NY Times Blog) that try to explain why the Court “said ‘yes’ to gays, but ‘no’ to Blacks.” This is a silly question even to ask of Kennedy’s votes, but it’s an entirely incoherent question to ask about the votes of 8 of the 9 Justices.

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  • Benito Mussolini

    I am greatly heartened to see that libertarian and classical liberal Ilya Shapiro has recanted, and agrees with the foundational doctrines of Fascism:

    7. Against individualism, the Fascist conception is for the State; and it is for the individual in so far as he coincides with the State, which is the conscience and universal will of man in his historical existence. It is opposed to classical Liberalism, which arose form the necessity of reacting against absolutism, and which brought its historical purpose to an end when the State was transformed into the conscience and will of the people. Liberalism denied the State in the interests of the particular individual; Fascism reaffirms the State as the true reality of the individual. And if liberty is to be the attribute of the real man, and not of that abstract puppet envisaged by individualistic Liberalism, Fascism is for liberty. And for the only liberty which can be a real thing, the liberty of the State and of the individual within the State. Therefore, for the Fascist, everything is in the State, and nothing human or spiritual exists, much less has value, outside the State. In this sense Fascism is totalitarian, and the Fascist State, the synthesis and unity of all values, interprets, develops and gives strength to the whole life of the people.

  • sparks

    OT: J. Otto must be doing a happy dance today.

    • elm

      A discussion of J. otto is never off-topic. if there’s one thing I’ve learned from this blog is that all things can be tied directly to J. Otto. He demonstrates and declares that with each of his comments.

    • Anonymous

      He hasn’t been around for a while, but I see that Ghana beat the US in soccer.

      • sparks

        *ding* And the man wins a cee-gar!

  • ichininosan

    To be fair, the principle of “equal state sovereignty,” is not something that Roberts “made up.” That sovereign nations are equal is a venerable principle of international law (see Vattel, Grotius, etc.). More difficult is the notion (assumed by Roberts) that the states have rights of sovereign nations. Their is a very longstanding debate in the American jurisprudence concerning whether states have the sovereign rights of nations (such as sovereign immunity), and the extent to which the Constitution and amendments to it abrogated those sovereign rights.

    • Another Anonymous

      Their is a very longstanding debate in the American jurisprudence

      There was, until 1865.

    • Scott Lemieux

      sovereign nations

      What the hell does this have to do with American states?

      • sharculese

        What the Court meant to say was that the VRA was unArticles-of-Conferedational

        • sharculese


    • Mike Schilling

      That sovereign nations are equal is a venerable principle of international law

      It’s why a trade agreement with Libya contingent on their not funding terrorism is unfairsies unless the same contingency applies to Switzerland,

  • Naturally, the Obama administration can’t go Andrew Jackson on this but when did the Supreme Court become the final arbitrator on effective policy? If the majority is not even going to mention the flipping amendment being violated, then the opinion should have no business being considered pertinent.

  • It starts and ends with:

    n striking down Section 4 of the Voting Rights Act, the U.S. Supreme Court has restored a measure of constitutional order

    This is such complete nonsense (for all the reasons Scott points out) as to really make me wonder how Shapiro can sleep at night.


    • Timb

      On a bed of wingnut sinecure checks he gets from Catoand George Mason, I imagine

  • Timb

    Wht always gets me is his bullshit claim to be a Libertarian. How could a libertarian have an opinion which allows a state entity to squash individual rights? The answer, which is he too bankrupt to mention, is a combination of a) there is no such as libertarianism and b) Republican like the current state governments, because they are easier for corporations to buy .

  • Rogers

    In discussions of the BushVGore coup there is sometimes a vestigial remnant of shame (not always- Scalia as you would expect is unreservedly truculent).I think the Texas A.G. whipped out his newly minted version of Jim Crow before the decision had even been completely announced. It’s like Lee Atwaters famous historical compression was being enacted in reverse- pretty soon we’ll simply have them shouting N,N,N,N….

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