Wednesday, June 26, 2013

Shelby County v. Holder, the U.S. Supreme Court, States' Rights, Racism and The Voting Rights Act (or) When is The Factual Basis for a Coverage Formula in Legislation a Constitutional Question?

We link below a selection of materials and opinions on the 5-4 decision of the Supreme Court of the United States ("SCOTUS") in the "Voting Rights Act" case of Shelby County v. Holder, 570 U. S. ____ (2013), issued June 25, 2013.

President Barack Obama, White House
Statement by the President on the Supreme Court Ruling on Shelby County v. Holder

New York Times with loads of links and info at
Reaction and Analysis of Supreme Court Decision on Voting Rights

SCOTUS BLOG Special Feature: The Court and the Voting Rights Act

REUTERS Timeline - A chronology of challenges to U.S. Voting Rights Act

Martin J. Reed at The Birmingham News, Voting Rights Act ruling raises differing reactions in Shelby County

John Archibald at The Birmingham News, Shelby County Voting Rights Act decision not all it appears to be

Raf Sanchez at The Telegraph, US Supreme Court guts voting protection law

Jim Newell at The Guardian, US supreme court strikes down key part of Voting Rights Act – live updates

Rupert Cornwell at The Independent, The ghost of segregation returns to haunt the ballot box

LawPundit (as below)

We previously wrote at A 98-0 U.S. Supreme Court Justice Scalia Questions a 98-0 Law of Congress in Oral Argument to Shelby County v. Holder that Chief Justice Roberts of the United States Supreme Court would likely cast the deciding vote in Shelby County v. Holder.

Roberts does in fact cast the deciding vote in Shelby County and also writes the majority opinion, but the Chief Justice puts much greater importance on "States' Rights" than we imagined, and surely far more importance than would be warranted e.g. by the findings in Righteous Anger at the Wicked States : The Meaning of the Founders Constitution (Cambridge 2005), a book by my Stanford Law School student colleague Calvin H. Johnson, currently Andrews & Kurth Centennial Professor of Law at The University of Texas School of Law. (Johnson was also the author of Reining in the Rogue States: The Angry Anti-State Nationalism of the 1787 Constitution, presented at Vanderbilt Law School, Nashville, Tennessee, March 14, 2000.)

Johnson writes that modern concepts of States' Rights were NOT an "original" intent of the Founders and that the U.S. Constitution was penned primarily as a FEDERAL document, that the most pressing need was to raise money via taxation, and that the Constitution was "Anti-States' Rights" in essence, something that can be seen in the prohibition against States printing their own money. In an online exchange with a "Neo-Anti-Federalist", Johnson correctly wrote at The New York Review of Books:
"In legal circles, the Constitution is commonly interpreted as written to rein in the power of the federal government. The Supreme Court has recently been creating new doctrines restricting the federal government and enhancing state power, based on its understanding of the “original intent” of the Constitution. There is a “relatively stable majority [of the Court] committed to enforcing limits on the federal power and to protecting the integrity of the states,” says Professor Richard Fallon of Harvard. The Court has used its new historicism to deny Congress the power to protect rape victims, to ask sheriffs to check arrest records for gun control, or to ban guns from schools.

Among legal academics, the Federalist Society is quite strongly committed to checking federal power ... [some] colleagues ... are committed to the new Anti-Federalism...."
Johnson is surely right on the new legal "historicism" of the originalists, who, paradoxically, demand CURRENT facts for a legislative coverage formula in making the determination of constitutionality in Shelby County v. Holder. One thus invokes modernity or originalism however it fits the result?

Overemphasis of States' Rights appears to be a modernly created "Neo-Anti-Federalism" that concurrently misunderstands the true extent to which broadly based Federalism has been at the root of American greatness.

In reality, "States' Rights" have had virtually nothing to do with the United States becoming the great world power it has become, to the advantage of all the States. Nevertheless, many a U.S. State has nothing against profiting from American world power, but very few want to pay for it.

Indeed, a comparison of federal revenue and spending (Wikipedia, Net Revenue Cartogram 2004) shows that it is the BLUE (Democratic Party voting) States (primarily pro-Federalist) who are NET contributors to the national financial pot while it is paradoxically the RED (Republican Party voting) States (primarily anti-Federalist) who are NET recipients of federal monies. Frankly, one very simple way to greatly reduce federal spending would be simply to cut federal spending in RED States to the same level as in BLUE States, because, as the Supreme Court notes in Shelby County, equality is the standard (quoting Chief Justice Roberts: "We explained that §5 “imposes substantial federalism costs” and “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.”").

(LawPundit observation: Note that the North-South Divide
is not only a problem in America, but in Europe as well.)

Based on Chief Justice Roberts' reasoning in Shelby County v. Holder, great portions of federal spending, especially in RED States, must be per se unconstitutional, because there is a clear inequality to BLUE States.

Not only is Roberts' excursion into the specific realm of States' Rights fraught with historical difficulty, but the rationale of an "outdated coverage formula" used to now suddenly hold §4(b) of the Voting Rights Act unconstitutional, after nearly 50 years of being in force, sets an out-of-the-ordinary precedent of constitutionality that simply does not hold much legal water.

Roberts concludes his majority opinion in Shelby County with the following statements:
"Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."
The "factual" inquiry about how much vote-denying racism or potential for racism still "currently" exists or not in any given State is most surely not a "constitutional" question, and is not even subject to precise empirical quantification. Rather, it is a political question for resolution by Congress, and not a legal issue that demands constitutional treatment. Any realist knows that there is a vast amount of racism in this world. Demanding empirical facts is unrealistic, and the LAW must be a tool of reality, not wishful thinking.

As a matter of future precedent, the Supreme Court's test of constitutionality can hardly demand, as in the case of Shelby County, that a perpetual "face-off" between Congress and SCOTUS take place on the "actuality" of the facts used to pass any piece of legislation, for if that were so, nearly every act passed by Congress would be subject to constitutional challenge, either because "the facts" at the base of legislation had changed in the interim, or because one could challenge whether the fact-finding organs of Congress had originally and properly done their homework in providing the factual justifications for any given law in force.

Indeed, surely any number of current laws in effect are based on factual circumstances which are long outdated. Accordingly, a newer "coverage formula" is imaginable for much legislation currently in force. That can not be a constitutional principle.


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