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The Hidden Antebellum Roots of Shelby County

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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.

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