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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  States are sovereign except when their sovereignty is superseded by an exercise of power delegated to the federal government.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.


Comments (79)

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  1. max says:

    (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.’]

  2. Thers says:

    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 says:

      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.

  3. mds says:

    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]


  4. Lex says:

    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.

  5. rea says:

    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 says:

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

    • Joe says:

      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 says:

        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 says:

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

    • Murc says:

      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.

  6. L2P says:

    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 says:

      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.

  7. sibusisodan says:

    From Shapiro:

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

    what? Any evidence for this?

  8. Incontinentia Buttocks says:

    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 says:

      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

    • Joe says:

      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 says:

      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 says:

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

      • Incontinentia Buttocks says:

        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.

  9. […] the would-be hilarity of the Supreme Court’s obvious descent into craven politicization as follows: [s]tates are sovereign except when their sovereignty is superseded by an exercise of power […]

  10. Benito Mussolini says:

    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.

  11. sparks says:

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

  12. ichininosan says:

    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.

  13. sleepyirv says:

    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.

  14. Bijan Parsia says:

    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.


  15. Timb says:

    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 .

  16. Rogers says:

    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….

  17. […] as with all defenses of Shelby Yoo never quite gets around to explaining what constitutional provision the Voting Rights Act […]

  18. […] Voting Rights Act. Roberts also cited the “equal sovereignty of the states,” which has no basis in the text in the Constitution or, as he used it, in the Supreme Court’s precedents. The few […]

  19. […] A Decision That Cannot Be Defended ( […]

  20. […] no justice who wasn’t hostile to the Voting Rights Act ex ante endorsed Roberts’s risible equal sovereignty doctrine, which he could have (and, if necessary, would have) invented from whole […]

  21. […] reviews for John Roberts’s performance in striking down the Voting Rights Act keep coming! The decision cutting the heart out of the […]

  22. […] various posters on this site have been noting for a while, the crucial problem with the Supreme Court’s decision disemboweling the Voting Rights Act is […]

  23. […] Timber, Johnathan Adler attempts (without quite endorsing the results) to do what John Roberts and his apologists have manifestly failed to do: offer a remotely credible defense of the holding in Shelby County. […]

  24. […] Justice Stevens has an essay about Shelby County. And since Stevens was never the kind of Republican who’s been using various forms of illogic to render the Civil War amendments a nullity for more than a hundred years, he of course is sharply critical of his former Chief’s disgraceful opinion. Admittedly, it’s not a tough job; one can probably just note that Justice Ginsburg’s dissent is “largely unanswered” and drop the mic. On many of the crucial questions the dissent raises — how can the preclearance formula be obsolete given the bailout provision? What’s the justification for the radical revision of the “equal sovereignty of the states” doctrine that was defined in the controlling precedent? — the majority opinion has nothing to say. And it’s clear at this point that the majority has no good answers to these questions because there aren’t any good answers. […]

  25. […] of the Supreme Court cut out the heart of the Voting Rights Act. And even worse, it did so with a farcically unpersuasive opinion based in large measure on literally confederate constitutional theories that weren’t very […]

  26. […] the Supreme Court’s evisceration of the Voting Rights Act. It shares something in common with every defense I’ve seen, including John Roberts’s — that is, it cannot identify any constitutional provision […]

  27. […] A Decision That Cannot Be Defended ( […]

  28. まぷぎご says:

    I would love to do a spring swap also!

  29. Excellent write-up, I will be typical visitor associated with one’s internet site, maintain up the e

  30. […] as the Roberts Court gave a clinic on how not to properly interpret the civil war amendments, Potter Stewart knew amendments that were […]

  31. […] is just pure gibberish, on a par with conservertarian defenses of Shelby County. The pardon power, a core executive power at the time of the founding, is right there in Article II […]

  32. […] been made if Conservatives still felt confident that they could ever win national elections again. Eviscerating the Voting Rights Act by a laughably cynical declaration of post-racial harmony, overruling one of Scalia’s few ideologically sound arguments concerning the extent of […]

  33. […] this is the same Ilya Shapiro you might remember from such arguments as “maybe the Section 4 of the Voting Rights Act was authorized by the so-called “15th […]

  34. […] Except for the fact that it doesn’t actually, you know, break any laws. Maybe Shapiro can explain how the executive order is “lawless” after he finally explains what constitutional provision Section 4 of the Voting Rights Act violated… […]

  35. […] when John Roberts said that racial discrimination in voting was no longer an issue in the United States, and therefore the Fifte…really had a section 2 in it? That…made no sense at all on its face. But starting before the […]

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