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A Decision That Cannot Be Defended


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  States are sovereign except when their sovereignty is superseded by an exercise of power delegated to the federal government.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

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