I noted last year that, in a sense, Chief Justice Roberts sold himself short in hisShelby County opinion. While Roberts’s opinion was not able to cite any meaningful precedent for his assertion that the explicit powers granted to Congress by the 15th Amendment were limited by the “equal sovereignty of the states” unless you count his own bare assertions, he was just forgetting that the “equal sovereignty” doctrine had been embraced by the Chief Justice of the Supreme Court in a 7-2 opinion that was widely hailed by the president and congressional leaders. As Adam Serwer notes, a new paper makes this case in more detail:
Roberts argued that the Voting Rights Act violated the “tradition” of “equal sovereignty” of the states. That concept is far more dubious than it might seem at first glance, according to a legal paper published by two longtime voting rights experts.
“The ‘equal sovereignty’ principle is not in the Constitution,” said James Blacksher, an Alabama attorney with a long career in Voting Rights. “It is, as the Chief Justice says, a ‘historical tradition.” Go straight past the penumbras, hang a right at the emanations.
Blacksher’s paper, co-authored with Harvard law professor Lani Guinier, argues that Roberts’s opinion in the Voting Rights Act case is a descendant of what is widely regarded as the worst Supreme Court decision in American history: The 1857 Dred Scott case, in which the high court held that blacks, slave or free, could never be citizens of the United States. That case is the “origin story” of the “equal sovereignty” principle, the authors argue, because the opinion by Chief Justice Roger Taney held that it would violate the sovereignty of the slave states to recognize blacks as American citizens. By invoking that principle, the authors write in Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote, Roberts was reviving “the oldest and most demeaning official insult to African-Americans in American constitutional history.”
“ ‘Equal sovereignty’ was the basis of the longstanding argument, going all the way back to the founding of the United States, between the slave states and the free states. The slave states claimed that they were equally sovereign with the other states to decide whether to have slavery or not to have slavery,” Blacksher said. “The ‘equal sovereignty’ doctrine that Chief Justice Roberts relied on last year is rooted in the jurisprudence of slavery.”
My one quibble: the “penumbras and emanations” language used by William O. Douglas in Griswold described a widely-accepted theory of constitutional interpretation in an intelligent matter, so it’s pretty much the opposite of Roberts’s opinion in Shelby County.
Meanwhile, conservatives are shifting their war on the most important civil rights statute of the 20th century to Section 2. And why not — one nice thing about legal doctrines with no actual content or basis in the Constitution is that they’re endlessly adaptable. Has Cato issues a paper arguing that the progressive income tax violates the Sacred Equal Sovereign Dignitude of the States yet?