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The Hidden Antebellum Roots of Shelby County

[ 202 ] July 8, 2013 |

As 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 its inability to explain how it violates the Constitution. The closest the Court comes to finding a limitation on the unambiguous power delegated to Congress by the 15th Amendment is a so-called “equal sovereignty of the states.” But not only does this limitation have no textual basis, the scant doctrinal basis (as Warren said in  South Carolina v. Katzenbach ) “applies only to the terms upon which States are admitted to the Union.”

In all fairness, however, as Joe also recently noted in comments there is some precedent that might lend greater support to Roberts’s position, even if he chose not to cite it for some reason. Indeed, a widely read opinion by the Chief Justice of the Supreme Court of the United States assumes that the citizens of states must be treated equally by acts of Congress:

But, as we have before said, [Wisconsin territory] was acquired by the General Government as the representative and trustee of the people of the United States, and it must therefore be held in that character for their common and equal benefit, for it was the people of the several States, acting through their agent and representative, the Federal Government, who in fact acquired the Territory in question, and the Government holds it for their common use until it shall be associated with the other States as a member of the Union.

A concurring opinion is even clearer:

We know that the resolution of Congress of 1780 contemplated that the new States to be formed under their recommendation were to have the same rights of sovereignty, freedom, and independence, as the old. That every resolution, cession, compact, and ordinance of the States observed the same liberal principle. That the Union of the Constitution is a union formed of equal States, and that new States, when admitted, were to enter “this Union.”

These sovereign and independent States, being united as a Confederation, by various public acts of cession became jointly interested in territory and concerned to dispose of and make all needful rules and regulations respecting it.

Strange; why wouldn’t Roberts cite a case that provides substantially more support for his position than any case he did cite? Let’s look that up for him:

Scott v. Sandford 100 U.S. 1

Oh, right. I think Republicans are still not supposed to approve of the precedent so nice it had to be overruled by constitutional amendments twice, since it proves that there’s no right to privacy or something.

In terms of its holding that the Missouri Compromise was unconstitutional, the Taney Court actually faced similar problems to those faced by the Roberts Court in its desire to gut the Voting Rights Act. On the one hand, The Constitution explicitly says that “[t]he Congress shall have power to…make all needful Rules and Regulations respecting the Territory,” while on the other hand no provision seems to explicitly bar a ban on slavery. In fairness to Taney and his justly discredited brethren, unlike the Roberts Court they at least didn’t rely fully on a made-up equal sovereignty argument; they also adduced a Fifth Amendment right for individuals to take property into the territory. This isn’t a very good argument either, but it’s not quite as bad, and in the antebellum context the general (although not the particular) claim actually had some cross-partisan support. (McLean, one of the dissenters, accepted a due process right to take property into territories in principle, but denied that it applied to slavery, since slaves could only be property if made so by the positive law of a given jurisdiction.) But the idea that the territories belonged equally to people of all states was the core of the argument that the Missouri Compromise was unconstitutional, an argument that in 1857 found there way into a Supreme Court opinion.

To be clear, I’m not making a Jonah Goldberg argument here, trying to argue that because the Roberts Court relied on logic similar to that used by people who opposed the constitutionality of the Missouri compromise that the Court secretly wants to restore slavery. What I am saying is that Roberts’s opinion rests on an utterly anachronistic vision of federal power that was highly dubious before the Civil War Amendments and was rendered completely nonsensical after they were passed. And while the moral implications of compact theory were worse in the antebellum era, as a matter of constitutional law the argument is even worse in the 21st century than it was in the middle of the 19th. The fact that this anachronistic states’ rights interpretation of federal power has consistently been used to oppose federal protections of civil rights and is still being used to do so isn’t a coincidence, but it’s wrong on every level. We fought a civil war against the premises that Shelby County uncritically invokes. But striking down Section 4 of the Voting Rights Act is the latest example of the party of Lincoln transforming into the party of Calhoun.


Comments (202)

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  1. Joe says:

    The reference in a footnote to Jefferson’s opposition to the Missouri Compromise is also sort of before its time — it would have been quite appropriate for some blog comment selectively citing Jefferson on the wrongness of some piece of federal legislation.

    • Joe says:

      btw, good reference to McLean.

      His dissent is often forgotten in lieu of Justice Curtis, who overall was more conservative on the issue of slavery etc., including opposing various moves by Abraham Lincoln during the Civil War. Both dissents have good stuff.

      • Scott Lemieux says:

        Right. As Mark Graber points out, Jonah Goldberg-style arguments about Dred Scott won’t get you very far, since Curtis was just as committed to white supremacy and contemptuous of abolitionists as Taney.

  2. Billmon says:

    “not only does this limitation have no textual basis…”

    Roberts: “Penumbras! Emanations!”

    • Scott Lemieux says:

      I demand you retract this slur on Bill Douglas, since Griswold actually mentioned parts of the actual Constitution that were of actual relevance to the case at hand!

    • The Wrath of Oliver Kahn says:

      Even a penumbra or emanation has more textual basis than this dreck.

    • rea says:

      But of course, “penumbras” and “emanations” are relevant in detemining the meaning of “due process of law” under the 14th Amendment. The rationale for using them to find a limit on the power of Congress under the 15th Amendment is, to put it very mildly, unclear.

    • Joe says:

      He goes more for specters:

      “spirit of the constitution.”

      Me personally, I’m okay with Griswold, at least the principle. Funny sounding words could have been avoided, but the idea, particularly since it arguably tried to limit the reach of substantive due process by tying it to text more, is sound. Roberts after all quoted McCulloch.

      I’m less okay with selective application. Roberts, to be fair, is not like Scalia here. He and Alito at least for sake of argument will support a “right to privacy” to some degree.

      On the merits, Shelby was still wrong.

      • Another Anonymous says:

        Roberts doesn’t care much about limiting a “right to privacy,” to the extent it doesn’t hamper the corporate national security state. (Remember who’s appointed all the FISA judges who have been letting NSA spy on every American with a phone, a mailbox, or a computer.)

        Shelby County was purely and simply about fewer Democratic votes, and the correlating chance of a Republican president’s being elected in 2016 to keep the Court right-wing for another generation. That’s what Roberts cares about. The man knows his priorities.

        • Joe says:

          FISA judges have been appointed back to the 1970s; the ultimate problem there is more the breadth of the law. Not that the likes of John Bates (who has been reasonable on various executive power issues) let the NSA check my mailbox too much or something because Roberts picked him.

          If his concern is mostly to protect corporations, women should be glad as to the right to choose et. al. Probably a bit too optimistic though.

        • Brad Nailer says:

          It must be nice to be one of the most powerful individuals in this country and be answerable to basically nobody, meaning, to We the People through an impeachment process that has about as much chance of being used as I do of taking Roberts’ place on the Court.

  3. Dave D. says:

    Horace Cooper, who pleaded guilty to some minor charges during the Abramoff Experience, was on Real Time two weeks ago crowing about how he had advocated for the Shelby County outcome in an amicus brief based on the equal sovereignty nonsense. To my astonishment, Maher was ready with a quote from Posner–the one about how the equal sovereignty principle “rests on air”–but then Cooper responded with a dissembling aside about the admission-to-the-union exception you cited above, while having the gall to accuse Posner of being somehow less informed than he.

    (I’m amazed at Maher’s ability to tap into this bottomless well of disingenuous black conservatives. Cooper was no Ron Christie, but give him time…)

    • Scott Lemieux says:

      I’m actually impressed; I’m not really a Maher fan but I’d guarantee that most liberal political hosts would not have been that well-prepared.

    • Joe says:

      I would also praise Maher’s staff.

    • Timb says:

      That case wasn’t an admission to the case. Purportedly, it was a case about the State of Oklanhoma moving its Capitol and how the Court said Oklahoma is a state like any other and can move its Capitol “because all states have equal rights.”

      The context was not even close, but it shut non-lawyers up

      • CJColucci says:

        I suppose if Wisconsin were treated worse than Nevada for no damn reason at all, the absence of a textual basis or a real doctrine of equal sovereignty wouldn’t be an obstacle to striking the discriminatory law. But where Congress has specific constitutional authority, and bases its action upon something rational, I’d think you would need something more.

        • timb says:

          Horace did not. Then again, he and Truth from down below vote for the same people, so, Horace’s judgment is a bit off

          • CJColucci says:

            Since you mentioned Maher’s “bottomless well of disingenuous black conservatives,” what about his bottomless well of (relatively) hot right-wing women? Where does he find them, and how do they get on the show? Do they get on the same way the disingenuous black conservatives do, or is there a different process? Inquiring — and dirty — minds want to know.

            • Zoltar the Magnificent says:

              Wait, are you implying that Maher doesn’t select disingenuous black conservatives for his show based on sexual favours?

            • cpinva says:

              “Inquiring — and dirty — minds want to know.”

              a bit of advice: always go with the “asking for a friend” gambit. it has the (very slight) advantage of not sounding quite so sleazy. or that’s what I’ve been told.

    • Sly says:

      Cooper is an idiot. The majority opinion in Coyle rests upon the fact that the United States government does not have the power to designate the capitals of the constituent states:

      Congress may embrace in an enabling act conditions relating to matters wholly within its sphere of powers, such as regulations of interstate commerce, intercourse with Indian tribes, and disposition of public lands, but not conditions relating wholly to matters under state control such as the location and change of the seat of government of the State.

      What’s other conditions are related to matters wholly within [Congress’s] sphere of powers? By way of Section 2 of the 15th Amendment, ensuring that “the 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.”

      It’s one thing to meander on about “Oklahoma blah blah blah Guthrie blah blah blah Article 4, Section 3 blah blah blah presto-change-o equal sovereignty of the states.” What Cooper and his cohort can’t contend with is the simple fact that in order for the states to be “equal sovereigns” they first have to be “sovereign.” And with respect to abolishing racial discrimination in elections, the states stopped being sovereign at the exact second that the 15th Amendment was ratified.

      And if the 15th amendment (or any other provision of the constitution) gave Congress the power to designate the location state capitals, Oklahomans would have had to wait another three years before moving theirs from Guthrie to Oklahoma City.

  4. Another Anonymous says:

    What I am saying is that is that Roberts’s opinion rests on an utterly anachronistic vision of federal power that was highly dubious before the Civil War Amendments and was rendered completely nonsensical after they were passed.

    “Neo-Confederate,” in other words.

  5. Truth says:

    I have a simple proposal.

    Only those who are net taxpayers, who pay more into the government than they get back, should have the right to vote. This would exclude food stamp recipients, those on welfare, “disability”, and all public employees.

    This will help us avoid the downfall of republican government caused by the people realizing they can vote themselves funds out of the public treasury.

    With that in place, the next step would be requiring an IQ test before being allowed to vote. All those with an IQ under 95 would be banned from the franchise, as they have not the intellectual capacity for responsible self-government (i.e. the Rachel Jeantels of the world).

    • And what about voters with pancakes?

      • Truth says:

        I think the modern base of the Democrat Party (i.e. the groups above I would ban from voting) are more into Popeye’s Chicken than pancakes.

      • Uncle Kvetch says:

        50 bonus troll points for scare quotes around “disability”

        • Truth says:

          The number of people on disability since 2009 has skyrocketed in recent years as you can see here.

          There is no other explanation for this than massive fraud. That any more people don’t become legitimately disabled in such a short period of time. No, they’re living their lives at the tit of Uncle Sugar.

          • Another Anonymous says:

            There is no other explanation for this than massive fraud.

            Sure, because you say so. Go eat some Popeye’s. I recommend the dirty rice on the side.

            • Truth says:

              They’ve been rising consistently for years now. The last time they actually went down was under Reagan.

              • timb says:

                When he illegally threw people off the roles depending on how much money they received…..ah, the good ol’ unconstitutional days

              • cpinva says:

                “They’ve been rising consistently for years now.”

                were you the idiot advising the head of the DEA, when he recently testified before congress, regarding the increased amount of opioids that the pharmaceutical companies were being allowed to manufacture? you must have been, because an intelligent advisor would have pointed out that the population is aging. and historically, elderly people tend to suffer more from constant pain, that liver killing ibuprofren has little to no effect on.

          • timb says:

            Does it hurt to be this stupid? The population has aged, women entered the work-force, and the Recession forced employers to fire the people they used to employ.

            Would it shock you to know (anything?) that SSA predicted the number of people on Disability back in the 90’s:

            If we go back to the projections in the 1996 Social Security trustees report, the disability program was projected to cost 1.93 percent of payroll in 2005. As it turned out, the program cost just 1.85 percent of payroll in 2005, about 4 percent less than the trustees had projected in 1996. The program’s cost did explode in the downturn, rising to 2.43 percent of payroll in 2011, with a projection of 2.48 percent of payroll for last year.


            Maybe it WOULD make you feel better to know that the percentage of people winning their hearings dropped from 62% to 46% from 2010 to 2012. Sure the number of case in Federal Court exploded and SSA is now losing more than 55% in Federal Court, but at least you’re keeping the “Popeye’s chicken eating crowd” from receiving that massive $1000/month

    • Joe says:

      This might invade Shelby’s “equality of states” principle.

    • Another Anonymous says:

      “This will help us avoid the downfall of republican government caused by the people realizing they can vote themselves funds out of the public treasury.”

      Given that people have had the power to vote themselves funds out of the public treasury for a good 200 years now, that “downfall” is sure taking its time.

      Leaving aside that the most skillful parasites on the public treasury are big corporations.

      • Truth says:

        This is patently false, it was only with the New Deal, and especially with the “Great” Society that the people had the full ability to vote themselves government bennies in exchange for nothing.

        While I also disagree with corporate welfare at least corporations produce goods, services, and jobs. The only thing morons like Rachel Jeantel give us in exchange is popping out more morons who will need more EBT, more schooling, more Medicaid, more more more.

        • Another Anonymous says:

          It was only with the New Deal, and especially with the “Great” Society that the people had the full ability to vote themselves government bennies in exchange for nothing.

          Uh, what? We had universal manhood suffrage (leaving aside those pesky future Popeye’s customers) since the Age of Jackson. The people had all the “ability” they wanted. Your thesis is a stupid one, even leaving aside the obvious fact that social welfare programs have a solid conservative (even reactionary) basis; look up “Otto von Bismarck” sometime.

          • Truth says:

            We did not have government welfare programs that gave a dependent class something in exchange for nothing until the New Deal, and it was expanded to unsustainable levels with the “Great” Society. This is a fact.

            Our ancestors in the Age of Jackson did not have EBT, TANF, Medicaid, affirmative action, make-work government jobs or anything else and they did just fine. Their only day-to-day interaction with the federal government was the Post Office or, if they were on the frontier, the army when it fought the Indians.

            Compare that to today.

            • jim, some guy in iowa says:

              no, our ancestors had subsistence farming or indentured servitude, short life spans, high rates of infant mortality, mothers dying in childbirth, people packed like rats into cites dying of typhoid because there was no socialist thing like sanitation,

              oh for christ’s sake. why am i bothering with such an obvious jackass?

            • timb says:

              Welfare existed in colonial America and throughout the history of the country.

              Amazing to think that the Romans just winked out of existence when they started the grain dole….I mean it was a 1000 year wink, but, when one is making up history, one can REALLY make up history

            • Origami Isopod says:

              or, if they were on the frontier, the army when it fought the Indians stole the land of Native Americans.

              Couldn’t let that go by.

          • Truth says:

            If you want a good example of what happens when the dependent, illiterate underclass grows too large and collapses on itself (after all the productive taxpayers leave) look at Detroit, Gary Indiana, East St. Louis, or Petersburg, Virginia. All once great cities destroyed by “Great” Society liberalism.

            • Cody says:

              Living regretfully close to two of those places, I’m confident the giant corporations the towns were built around had nothing to do with their downfall.

              After all, corporations are looking out for the good of Americans!

        • I’m absolutely fascinated by the idea that someone who’s only in the public eye because they’re testifying in a murder trial is becoming a synonym for Those Stupid People. Completely mortified (to the extent I have the capacity for that, still), but fascinated at the same time.

          Then again, you can use affinity for Popeye’s as an un-ironic insult, so we’ve certainly established that you have a lot of issues to work through.

          • Truth says:

            It’s simple.

            Rachel Jeantel is far more representative of the idiot, dependent black underclass than is the black people the media shows us on TV everyday.

            Steve Sailer has more.

            • Uncle Kvetch says:

              Steve Sailer has more.

              Oh, dear.

            • rea says:

              I wonder how coherent Jen would sound if put on TV speaking in her third language? Heck he/she can’t even manage to make sense in English!

              • Truth says:

                Asians come here speaking a far different language than French and learn pristine English pretty quickly. Hell Chinese living in China do.

                The difference is one of IQ, not because it was a second language. Ms. Jeantel most likely sounds just as idiotic speaking in French as she does in English.

              • Truth says:

                And different languages, even if we take this argument at face value, doesn’t explain the surliness, lack of attention, lack of impulse control, and other pathologies she displayed while on the stand.

                • timb says:

                  Do you hate all black people or just her?

                • Truth says:

                  Hate is a strong word. I strongly dislike the fact that we are subsidizing the breeding of low IQ individuals who will never amount to anything in an age of high-tech international economic competition and existential environmental crisis.

                • It’s amazing that you learned about these, er, “subsidies” just by watching her testify in a murder trial.

            • Origami Isopod says:

              Honey, Rachel Jeantel speaks Haitian Creole and Spanish in addition to English. How many languages do you speak?

        • Sly says:

          The New Deal? The Homestead Act of 1862 gave away a quarter of a billion acres of land to private citizens. Does that not count as the citizenry voting itself “largess out of the public treasury” because that largess didn’t come in the form of sweet, sweet cash?

          When formulating your answer to that question, keep in mind that black people were not prohibited by law from participating in the program.

          • Truth says:

            The Homestead Program required you to work and settle the land in exchange for owning it. Homesteaders put in some sweat equity there.

            • Origami Isopod says:

              Land that was stolen from its original inhabitants.

              • Truth says:

                It was a minority of that land that had people on it to begin with, but what of the land that was taken by force? Who cares? It’s happened millions of time in history. The higher civilization drives out the hunter-gatherers. It was going to happen no matter what old world civilization the Amerinds came in contact with.

                • witless chum says:

                  So “Amerinds” were hunter gatherers, huh? You’re a smart, informed person who should be listened to on topics of import.

                • Timb says:

                  Well, except for their vast maize, bean, and squash farms, yes, he saw it Dances with Wolves. You remember him? He was the one loudly rooting against Costner before he stomped out screaming “Miscregnagist”.

        • cpinva says:

          “While I also disagree with corporate welfare at least corporations produce goods, services, and jobs.”

          that’s the great thing about 1A, you can say any stupid thing you want, with no basis in fact behind it, and you won’t be put in jail. you’ll just be mocked for your display of flat-out ignorance.

          1. corporations get the lion’s share of government largesse, in terms of special tax deductions (some made up out of thin air. the domestic production deduction comes to mind.) plus all kinds of special tax credits, many of them targeted to specific industries. amortization of acquired assets having no determinable useful life (good will). special 10 year loss carrybacks (for cleaning up the environmental mess you made in the first place). shit, I could go on all night.

          next time you’re in a store, check the label on that pair of “American” made jeans, and see where they’re actually being made. they speak a foreign language there.

          Christ, what a fucking idiot you are.

    • Scott S. says:

      I have a simple proposal, too.

      Round up the racist motherfuckers, put bullets in their brains, dump them into the sea.

      Mine is way simpler, way more fun, and it’ll actually improve the country.

      • Truth says:

        Good idea. Why, then we could be just like the massive success that is Detroit and East St. Louis.

        No evil cracker racist honkeys in either of those two places, right?

        • Scott S. says:

          Dead Klansmen are always a good thing.

          • Truth says:

            No Klansmen in Gary, Indiana. You do have such wonderful people as these ladies, though.

            • Truth says:

              Well East St. Louis actually, but same dynamic.

              I know! Let’s give them even MORE welfare. That should fix it, right?

              • timb says:

                I don’t know…..seems after giving the white people running banks 1.2 trillion dollars in the last 5 years, we could afford something to help others.

                I mean, jesus, it was less than 5 years ago and this cracker has already forgotten

                • Fuck, this cracker can’t even figure out that it’s the looting rich white class that screwed up Detroit.

                • cpinva says:

                  all the looters in all the riots since the 60’s never came close to stealing the amount taken by the captains of the financial industry in 5 years.

          • Truth says:

            No Klansmen in sight!

            Too bad not everyone can be enriched by such Diversity.

            • Scott S. says:

              A few Klan meeting barns, lit up like torches, a few neo-nazis with axes through their skulls, and a couple Grand Moff Beagles carved up like turkeys, all coupled with some pix mailed to the Dumb White Supremacist Punditsphere asking if they’ve checked the lock on the back door…

              That’d send a mighty nice message, I think. Mighty nice.

              • Truth says:

                No evil Whitie here!

                That’s what a 90%+ black city looks like, folks.

                • cpinva says:

                  you dumbass. did you even bother to check the date of that video? no, you probably didn’t. it’s 2009, right at the height of the real estate crash-n-burn, brought to us by your heroes, the white knights of the finance sector.

                  near Ft. Myer, FL, there were see through buildings of $300k condos, either unsold or abandoned, for the same reason those houses in Detroit (and the see through office buildings in downtown Detroit) were abandoned. the skin color may have been different, the reason was the same.

        • gocart mozart says:

          Not all white people are “evil cracker racist honkeys”, why do you hate white people Truth?

          • Truth says:

            No, most whites are merely hypocrites. Saying they believe in “diversity” while flocking to places like Portland and Utah and abandoning hellholes like Detroit and Los Angeles. They’re racial realists, even if they won’t admit it. No white parent in their right mind would send their child to a 90%+ black high school if they can help it, even if they’re liberal Democrats.

            • timb says:

              White people still live in the Detroit Metro area, dingleberry. Watch a Lions game on TV

              • Truth says:

                Yes, but they left the city didn’t they? Hmmm…wonder why that could be? And why are the Detroit suburbs still very pleasant places (despite the troubles of the domestic auto industry!) but the city is a dysfunctional shithole?

                The difference between Allen Park and Highland Park is racial IQ.

                • timb says:

                  What’s the difference between Hyde Park and Highland Park?

                • Truth says:

                  One is 90%+ black, the other is only 30%.

                • Truth says:

                  Oh, and Allen Park is a typical white blue-collar suburb. There are millions just like it.

                  Hyde Park is the home of the Talented Tenth types, and they can still only get to around 30% of the population.

                • Timb says:

                  One wonders if your grasp of demographics is as poor as your grasp of economics or history or civics. I have yet to see a citation to your demographic numbers or one to Stormfront or VDare for your bullshit “talented Tenth theory.” A theory disproved by human evolution (we ALL cam from Africa), human genetics, and human history

            • cpinva says:

              I’m so white, I’m nearly translucent. they would have to drag me, kicking and screaming, my fingers leaving furrows in the ground behind me, to get me to do anything other than fly over Utah.

        • timb says:

          You ever been to Mississippi or Alabama or Appalachia. Trash knows no color. Look in the mirror and you’ll see poor white trash, two pay checks away from the trailer

          • Truth says:

            Mississippi is the blackest state in America.

            Appalachia is poor, yet we never hear about welfare riots or violent flash mobs in Mingo County, now do we? Nobody in eastern Kentucky is afraid of leaving their doors unlocked at night, or worries about getting killed in a drive-by and so on.

            Appalachia could actually benefit from increased government investment precisely because its residents really are being held back by material conditions, not their innate lack of intelligence.

            • timb says:

              So, just so I understand, blacks don’t live in economic depredation; only smarter whites do?

              • Truth says:

                When whites live in poverty most of the time its due to factors such as economic isolation. MOST of the time. There are stupid whites, but there are a lot less stupid whites than stupid blacks. And even when whites are desperately poor, they still aren’t as violent or criminal as blacks. That’s why nobody would be afraid to spend a night eastern Kentucky or West Virginia even with their doors unlocked. You’re more likely to be killed by a wild animal than a hillbilly there.

                • Abbey Bartlet says:

                  When whites live in poverty most of the time its due to factors such as economic isolation. MOST of the time. There are stupid whites, but there are a lot less stupid whites than stupid blacks. And even when whites are desperately poor, they still aren’t as violent or criminal as blacks. Thaxt’s why nobody would be afraid to spend a night eastern Kentucky or West Virginia even with their doors unlocked. You’re more likely to be killed by a wild animal than a hillbilly there.

                  When whites live in poverty, most of the time its due to factors such as economic isolation, most of the time. MOST of the time. There are stupid whites, but there are a lot less far fewer stupid whites than stupid blacks. And even when whites are desperately poor, they still aren’t as violent or criminal as blacks. That’s why nobody would be afraid to spend a night in eastern Kentucky or West Virginia, even with their doors unlocked. You’re more likely to be killed by a wild animal than by a hillbilly there.

                  If you’re going to go on racist rants, do try to at least make them follow the rules of grammar.

              • Truth says:

                Another apt comparison would be between Eastern Europe and Sub-Saharan Africa. Since the end of Communism, Eastern Europeans have rapidly improved their economies and standard of living once freed from that idiotic ideology, and in a space of just a little over 20 years.

                Black Africa has had nearly 60 years now to do the same (and with no legacy of Commmunism) but is poorer now than it was when the white man left.

                • timb says:

                  The white man left Sub-Saharan Africa? I think you should look at the passports from the nice engineers and corporate officers of BP and Shell. Seems to me, a lot of visits to Nigeria….Hell, my nice, white cousin spent a good two years in Africa training their military how to shoot people.

                  I think you might know less about Africa than you America, which, as has been established, is not a lot

                • Truth says:

                  He left it as much as he left, say, South Korea.

                  South Korea, despite having zero mineral resources went from being poorer than Ghana in 1950 to being a wealthy, developed nation today once colonialism ended. Africa did not. This is because the average IQ of an East Asian is 106, and that of the average Black African is in the 70s. They do not have enough intelligent people to successfully run a techno-industrial state in the style of Europeans or East Asians.

                • timb says:

                  And, the goal posts are moved again!

                • Truth says:

                  How come South Korea has climbed the ladder from agriculture, to light industry, to heavy industry, to high tech industry in 50 years and not Nigeria? Why does the former give us cell phones, automobiles, and microprocessors while the latter gives us nothing but simple resource extraction and internet scams?

              • Truth says:

                A great idea, actually, would be a program to move Appalachian whites out of their dying coal towns (which will never come back, we CANNOT continue to use coal) and re-settle them in abandoned Detroit homes. Give it 20 years and Detroit will be a great city again.

                • timb says:

                  even with no factories and resources? Who pays to move all these dumb crackers to their new homes? Surely not the government?

    • rea says:

      Jen seems not to have grasped that every one in the country gets more value from the government than they pay in taxes. That’s why government was invented. If he/she doesn’t like it, he/she can emigrate to Somalia.

    • shabadoo says:

      Disenfranchising soldiers. That’s a winning platform.

    • Murc says:

      Only those who are net taxpayers, who pay more into the government than they get back, should have the right to vote.

      This would mean almost nobody would have the right to vote, since just about everyone in the country pays less in taxes than the benefits they derive from the feds.

      My Dad is a high-flying Doctor with a pretty high tax rate. It SEEMS like he pays more than he gets back. But you know what? His daily commute is government-subsidized (roads). Most of his patients are paying him with government-subsidized funds (either through employer-provided health insurance, which only exists because of the government, or via explicit government programs.) The payments he receives, themselves, are government supported; the government created the universal medium of exchange he accepts as currency and the currency legal guarantees that he may use that medium to settle all his debts, public and private.

      The government paid for twelve years of his education. The government makes sure his water and air are clean (to an extent); he doesn’t pay for that himself. And I’m just scratching the tip of the iceberg, here.

      Almost nobody pays more in taxes than they get back. Nobody.

      • Truth says:

        If he pays income taxes, of course he should vote.

        I’m speaking of welfare parasites and other non-productive elements. They should not vote for the same reason we don’t allow 10 year olds to vote. They don’t have the mental capacity for self-government, and have no stake in society beyond collecting their Obama Bucks.

        • timb says:

          Do you have any proof that Neil DeGrasse Tyson is not as smart as your silly cracker ass?

          Or Bill Cosby or Michael Jordan or, hell, Clarence Thomas?

          • Truth says:

            Do you understand what the words “on average” mean?

            • timb says:

              On average, your comments are extremely stupid.

              So, yes, I do

              • Truth says:

                If you understand “on average” then your question about Bill Cosby and Neil DeGrasse Tyson is irrelevant. They’re part of the old Talented Tenth of Booker T. Washington. But there are not enough of these in enough of a critical mass for blacks to successfully compete in a modern, techno-industrial civilization.

                • timb says:

                  What about your comments? Why are they ALL stupid?

                • Truth says:

                  No, my comments are pointing you towards the objective reality of racial differences.

                • witless chum says:

                  That was W.E.B. DuBois and there’s totally no difference between those guys!

                • cpinva says:

                  “No, my comments are pointing you towards the objective reality of racial differences.”

                  have the lumps on your head been measured yet?

          • Truth says:

            And Clarence Thomas is not very intelligent. Clearly a case of Republican AA. You could almost say nominating Thomas was little more than conservatives trolling white Democrats.

            • timb says:

              Thomas is a bright man, who came to the forefront of his profession from basically nothing. If you do half as much in your trailer-park living existence, we can call you a success.

            • witless chum says:

              Wow, racist and ill-informed about Clarence Thomas, too. What’s that saying about a foolish consistency being the hobgoblin of something?

        • Murc says:

          If he pays income taxes, of course he should vote.

          So you’re repudiating your former statement already?

          Only those who are net taxpayers, who pay more into the government than they get back, should have the right to vote.

          It’s a start, I suppose.

    • sharculese says:

      No. That’s stupid.

    • Cody says:

      So it’s safe to say corporation’s who receive federal subsidies cannot have “owners” vote either, right?

      As that is a form of “welfare” unless you just hate “welfare” because it goes to “poor” people.

      So, basically anyone who owns stock. Hmm. This would make an interesting America.

      • cpinva says:

        you’d have to include management and all employees in that no voting group as well, since the whole public infrastructure cost far more to build and maintain, then any of them pay in taxes.

    • Anonymous says:

      This might not go the way you want it to. This would include the military, the civilian part of the military, and the millions of early military retirees living off of benefits. That segment of the population is basically a Republican vote machine.

      By extension, we should include the many millions of people who are employed with private firms that get their money from contracts with the War Department and the DHS (or as I prefer it, in the original German, Der Heimlandversicherheitsamt ). Add in all retirees on Social Security. Both population segments that strongly lean Republican.

      After that we can go after all the farmers (and their employees) who live off of dairy price supports and other farm subsidies. Get all of those GOP voters off of the voting rolls.

      Of course, that’s the fundamental problem. The Gullible Oligarch Party imagines that they are the rugged individualists who are the only ones working to pay taxes, when in reality they are first in line at the government teat.

    • liberal says:

      Only those who are net taxpayers, who pay more into the government than they get back, should have the right to vote. This would exclude food stamp recipients, those on welfare, “disability”, and all public employees.

      LOL. The biggest net beneficiaries of government-bestowed privilege are landowners.

    • Heron says:

      The Republican party will never support such a bill because such a bill would cover the majority of their voting base. The Dems would never support it because it is disgusting, essentialist, aristocratic, patronistic nonsense. Here’s a hint; the fact that you want to tell veterans who’ve lost their limbs in war and families working multiple jobs but, due to shitty wages, still struggling under the poverty line that they can’t vote is why people don’t like you. You’re a jerk, people see that about you, and they’d rather avoid it.

      The rest of this is equal hogwash. “The downfall of Republican government”? It’d be nice if you incompetent boobs could point to one -just one- democratic government in the history of the world that bankrupted itself through too-rich subsidies to the citizenry. Greece failed because it’s corrupt elites were more interested in helping Goldman loot the treasury than civic duty; the US devastated its economy -though not anywhere near its treasury- for practically the same reason; Iceland the same deal. This entire theory, going back all the way to goddamn Plato(and doesn’t he have a lot of bad thinking to answer for?), is built entirely on air! It’s nothing but nebulous theory masquerading as “hard-nosed”, “pragmatic” “common-sense”, which -Hey!- describes conservative political philosophy pretty well overall when you think about it.

      Everywhere you look it’s never “the people” voting themselves subsidies that breaks a government; it’s “the elite”, because what’s the point of social status if not the “right” to loot everyone else? It’s inescapable human nature to want to protect and expand what you have for the sake of your children, and the more you have, the more you have to do to accomplish this, and eventually you have so much that to keep it growing you’ve got to rob the rest of society entire. This is one of the major drivers of political corruption and dissolution and you don’t have to trust a liberal like me; just read Fukuyama’s The Origins of Political Order, the chapters on the French Revolution specifically though they’re hardly the first place he discusses this. But of course you won’t do that, because you’re an idiot and a sycophant and thinking isn’t your forte; better to let men you don’t know, who’ve never done a single minute of primary research in their lives, tell you how the world is than spend the time and effort required to actually understand a topic. Why, that would take some smidgen of integrity, curiosity, and effort! Fools like you who saunter about ironically blanketed in the moniker of “Truth” don’t truck with that sort of thing.

      • cpinva says:

        well, the basic reason this will never come to pass, is that the constitution makes no mention of even being a taxpayer, to have the franchise. somehow, I doubt that amendment passes muster with anyone.

        • Abbey Bartlet says:

          well, the basic reason this will never come to pass, is that the constitution makes no mention of even being a taxpayer, to have the franchise. somehow, I doubt that amendment passes muster with anyone.

          *Paul Ryan jumps up and down excitedly.*

    • Abbey Bartlet says:

      Only those who are net taxpayers, who pay more into the government than they get back, should have the right to vote.

      K. Let’s apply that to states for the Electoral College.

  6. James E. Powell says:

    While the still-beating heart of Segregation Forever! is what provides political support for the decision in Shelby County, the decision is really about political power. Roberts doesn’t see African-American voters, he sees Democratic voters.

    Roberts is consistent in his support for the corporate ruling class. There is no evidence that he cares about anything else.

    • Scott S. says:

      Yeah, Roberts and Alito care about the law only as far as they can twist it to serve the Republican Party. They’re not judges — they’re partisan operatives only.

      If Scaife and the Kochs sent Roberts a note telling him they wanted it to be legal for multibillionaires to have sex with lawn flamingos, it’d be on the docket tomorrow.

  7. Truth says:

    Liberals need to realize that Socialist programs can only exist in relatively homogeneous, high IQ societies like Denmark, Japan, or Portland, Oregon. Add low IQ racial group “diversity” to the mix and you end up with a dependent underclass that will do nothing but breed and suck up taxpayer dollars until the parasite bankrupts the host. Even Sweden is now finding this out with all the Somalis Bantus and Arabs its taken in in recent years. Now they have race riots even in Sweden despite the most generous welfare benefits on planet Earth. Something that was unthinkable when Sweden was, well, 100% Swedish.


  8. JMP says:

    “Truth” is a little refreshing in being an overtly vile racist pile of shit, instead of trying to hide his racism behind code words like the usual trolls.

    And government doing its’ job and providing for the poor goes way back before the New Deal, at least as far as when Julius Caesar and Publius Clodius implemented the free grain dole (which was already heavily subsidized) for the Roman head count.

    • Truth says:

      Racism is realism, and realism is racism.

      All men are not biologically equal. This is science.

      I do find it interesting how liberals (correctly!) ridicule conservatives for their idiotic belief in young Earth creationism and (again correctly) their ludicrous denial of man-made climate change, while engaging in the pseudoscience that all races of men are equal in ability and intellect on average. Believing in the latter is just as stupid as believing that Jesus rode a dinosaur.

      • sharculese says:

        I’d ask you to cite some studies that support your position, but you’re Jenny, and we know you’re not actually interested in the latest salvo in your desperate, attention-seeking gotcha game, where the true loser of every round is your own dignity.

        • sharculese says:

          *not actually interested in science, just in the latest salvo

          • sharculese says:

            How could I have guessed it would be The Bell Curve?

            It’s almost as if in addition to being dumb and attention-starved, you’re also lazy.

            • Truth says:

              I’m guessing you’ve never read it. I realize it’s on the index of prohibited books in the religion of Liberal Creationism.

              Why don’t you give it a try anyway?

              • Paulk says:

                I like how the idea is that “liberals” have avoided the brilliant argument of Murray rather than Murray getting his butt handed to him by pretty much everyone across the ideological spectrum.


                Start at Peer Review and just keep going. I do like Murray’s “correction” at the end, which addresses one of the dozens of problems identified with his thesis.

                The point is, shoddy work shouldn’t be passed off as authoritative.

                • Truth says:

                  Wikipedia, how scholarly!

                  Points for not bringing up the discredited Gould, though.

                  Why don’t you try reading this.

              • witless chum says:

                That’s the thing about the race science morons. They can’t get published in actual scholarly place. They have to crawl to magazine editors with hangups and wingnut welfare outfits to get their stuff published and they claim it’s because of a liberal conspiracy, as opposed to the fact that none of them have an actual hypothesis about how genetics are driving intelligence.

                Why would anyone read an old science book that most scientists have concluded is just a bunch just-so stories in service of a ill-informed, poisonous ideology?

                • Truth says:

                  Wikipedia: scholarly place.

                  Jason Richwine, before he was figuratively burned at the stake for stating obvious scientific truths, managed to get a PhD from Harvard and his thesis was on the lower IQ of Hispanics relative to whites.

                  But I’m sure Wikipedia knows more than a Harvard scholar.

                • witless chum says:

                  That’d be the dissertation he needed four interns to help him with? Ah, the master race.

                  And, while it might be politically correct in your circles to read them, pretty much everyone in Charles Murray’s alleged field wrote takedowns of his dreck when Weird Andy Sullivan published it in the New Republic.

                • timb says:

                  That’d be the dissertation he needed four interns to help him with?

                  Not to mention it’s about a race of people who aren’t a separate race at all, but are considered Caucasian

              • sharculese says:

                I’m not sure why you thought using dumb catchphrases like ‘Liberal Creationism’ was going to make me take your argument more seriously, Jenny, but it’s not.

      • timb says:

        All men are not biologically equal. This is science.

        Does “science” mean something different in cracker world?

        • sharculese says:

          It means ‘whatever shitty math makes me feel like less of a failure.’

          Jenny, usually so quick to confuse correlation and causation, seems totally unable to grasp the relation between his behavior and how much he hates his life, so he needs it to be the liberal conspiracy’s fault.

    • burritoboy says:

      One does begin to wonder why the racists seemingly MUST use this completely absurd method to understand the world around them.

  9. Tnap01 says:

    If you want a good example of what happens when the dependent, illiterate underclass grows too large and collapses on itself (after all the productive taxpayers leave) look at Detroit, Gary Indiana, East St. Louis, or Petersburg, Virginia. All once great cities destroyed by “Great” Society liberalism.

    Strange to use Petersburg as an example, any coincidence that it is right next to COLONIAL HEIGHTS?

  10. fka AWS says:

    This is quite possibly the most hideous display of overt racism from a troll here in a while that I’ve seen. Ugh. I need a shower.

  11. timb says:

    When he is banned, I do hope they leave the comments. I would hate it if what the Right really thinks disappeared into ether

  12. JMP says:

    You know, saying “I’m not a racist, I just really and truly believe black people are stupid” does not in fact make you not a racist, but in fact prooves that you are a giant stinking putrid racist, one of the biggest racists around, along with proving that you are a complete failure at science.

    • Truth says:

      but in fact prooves [SIC] that you are a giant stinking putrid racist, one of the biggest racists around

      So what if it did?

      Once again, by the way, it’s not “black people are stupid”. It’s “on average, blacks have a lower IQ than whites”.

      • timb says:

        On average, this is not true, no matter what your read from Charles Murray and Steve Sailor.

        • Cody says:

          I guess one of the downsides of the internet is you can find a source for anything.

          Sure, it can be horrendously wrong person. But you can still claim it a source! Then again, people wrote stupid books too. It just took a lot more work to find them…

      • witless chum says:

        The funny thing is, I remember trying to engage with a more-coherent race IQ theorist on this, and the payoff to all this caterwauling and carrying on about IQ was that it proves affirmative action doesn’t work. Ie, it proves something they already think for other reasons. I guess sometimes it’s fun to go the roundabout way.

  13. Truth says:

    Liberal Creationism.

    Until you repudiate it, you really have no right to make fun of Young Earth Creationists or climate change deniers. You’re doing the same thing they are: denying scientific truths in the name of ideology.

    • Walt says:

      Nah, I’m just going to go ahead and keep making fun of Young Earth Creationists and climate change deniers.

    • witless chum says:

      Since Slate links are the last, capitalized word on everything:

      Why is always projection with you people? You run around in circles and pay scholars with little integrity to come up with fancy justifications for what you already believe and then accuse the reality-based community of being creationists. You’ve got to know deep down that this shit is stupid. Being white just doesn’t make you any better than anyone else. As someone who’s spent a fair amount of time around white people, I feel pretty confident in this.

      You can scream about ghettos all day long, but you won’t understand them when you seek the explanations in magic blood. (Because you guys don’t demonstrate any real understanding of DNA.) Listing the ways that government policy and the actions of the then-white majority went about creating East St. Louis won’t do any good. After reading your posts here, my impression is that you don’t have the capacity to, say, read the history of Korea and that of Nigeria and come up with more plausible explanations for how they developed than magic blood. I don’t have any reason to believe your incapacity is genetic, though.

    • Tiny Hermaphrodite, Esq says:

      You are Jason Malloy and I claim my five pounds

  14. Matt T. in New Orleans says:

    Once again, we learn that anyone who claims any sort of possession of “the truth” – either bringing it or using it as a handle – is full of shit as a Christmas goose. Disenfranchise the bulk of the population, no, that’s not elitist and butt-numbingly stupid at all.

  15. […] “[S]triking down Section 4 of the Voting Rights Act is the latest example of the party of Lincoln tra….” Scott Lemieux won’t let Shelby County go, and with good […]

  16. Hogan says:

    If you keep feeding it, it will never go away.

    • Scott Lemieux says:

      And if all you need to do to completely derail a potentially interesting thread is to cut-and-paste Steve Sailer blog posts, why put in any more effort?

      • Timb says:

        Is there more to say? You’ve done great work on this and the thing that needs to happen next is that someone in Congress needs to bring this up for a vote. Since that won’t happen in the next few years, all we can do is agree with you that the principle is crap; the decision politically motivated; and, Jason Malloy was more fun to argue with than John “Imperial Oligarch” Roberts

    • witless chum says:

      Law-talkin’ is hard, beating up Charles Murray is easy.

  17. […] Court That Its Ratings Are Ridiculous and No One Should Ever Take Them Seriously | Scott Lemieux: The Hidden Antebellum Roots of Shelby County | Alan Blinder: The Economy Needs More Spending Now | Ezra Klein: Obamacare just got easier to […]

  18. […] Lemieux: The Hidden Antebellum Roots of Shelby County | Alan Blinder: The Economy Needs More Spending Now | Ezra Klein: Obamacare just got easier […]

  19. […] again, one can say the same thing about the long reactionary history of finding extratextual reasons for limiting the power of the federal government. As a matter of formal logic one can advance these beliefs without being hostile to civil rights […]

  20. […] unless it’s escaped easy detection on Google, Barnett has yet to comment on Shelby County. But the underlying discussion led me back to Barnett’s discussion of McCulloch v. Maryland […]

  21. […] You can understand why Paul was reluctant to let talent like this go. Fortunately, there will presumably be room for him as a clerk for John Roberts. […]

  22. yaplog says:

    In the grand pattern regarding things you’ll receive a A+ for effort and efforts. Exactly where you

  23. ゃこるゑ says:

    Thank you for some other excellent post. Where else may just anybody get that kind of info in such a perfect means of writing? I’ve a presentation subsequent week, and I am at the look for such info.

  24. […] searches reduce racial strife is even more special.  Has Reynolds written a column about how Shelby County is the ultimate fulfillment of Martin Luther King’s vision […]

  25. […] I’ve previously mentioned, Chief Justice Roberts’s assertion that there is a constitutional “equal sovereignty of […]

  26. […] If only the Party of Lincoln hadn’t become the party of Calhoun and Taney… […]

  27. […] about placing categorical conditions on the receipt of federal funds. Although as the Roberts Court continues to build on neofonfederate constitutional logics, perhaps this will be the next frontier in the Equal Majestic Sovereign Dignitude of the states […]

  28. […] At least one Tea Partier is a particularly big fan of Shelby County! […]

  29. […] additional point about the risible “equal sovereignty of the states” doctrine Roberts resurrected from the antebellum slave power, it’s a classic example of conservative hacks citing their own bare assertions in dicta as if […]

  30. […] noted last year that, in a sense, Chief Justice Roberts sold himself short in his <em>Shelby County opinion. […]

  31. […] Indeed, this idea was central MLK’s philosophy. But the lie-beral media has suppressed the truth, just like they don’t want you to know about the 3rd Section of the 15th Amendment, “nothing in this amendment shall be interpreted as conflicting with the doctrine established by the Supreme Court in Dred Scott v. Sandford.” […]

  32. […] Court justices (including quintessential country-club moderate Republican Anthony Kennedy) are willing to rehabilitate Roger Taney to gut the Voting Rights […]

  33. […] You can bet that’s exactly what King had in mind! And he totally would support the same Court that brought Roger Taney’s legal theories out of the mothballs to gut the Voting Rights Act ending disparate impact analysis […]

  34. […] the 15th Amendment, was a major accomplishment, driven by the courage of the disenfranchised. Which makes the extent to which the rights remain under attack […]

  35. […] such utter crap with a straight face. Where is the clear “rule” mandating that “the equal sovereign dignitude of the states trumps the powers explicitly granted to Congress under t…“? Where does it say that “states must use uniform vote counting methods if not doing so […]

  36. […] 2 19th century precedents every bit as egregious as Plessy or Dred Scott. Roberts in Shelby County was shrewd enough not to cite Dred Scott even as he relied on its constitutional logic. But Rehnquist can cite equally white supremacist […]

  37. […] of the Constitution or Supreme Court precedents not written by John Roberts, save for the infamous Dred Scott v. Sanford. If the Roberts Court is willing to cut the heart out of the most important civil rights statute […]

  38. […] Court decides to hear a voting rights case. It has upheld voter ID laws on the one hand, and struck down a crucial provision of the Voting Rights Act on the other. Today, however, was a rare exception. A […]

  39. […] I can’t give you an example of a judge explicitly citing Dred Scott. But I can give you an example of the Chief Justice of the United States joined by four of his brethren using Dred Scott… in order to place an extratextual limitation on the powers explicitly granted to Congress by […]

  40. […] as “the powers grated to Congress by Section 2 of the 15th Amendment are constrained by the Equal Sovereign Dignitude of the states, which can be located in the text of the Constitution…hmm, ok, but it is deeply embedded in […]

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