[EL] simple-minded question about Shelby County decision

[Adam Bonin]

I didn't realize that rational basis review now required the most current
research and data.  I thought it was just that Congress just had to have
some rational basis, not the most rational basis.

 

The underlying question to me regards the textual basis for the new Equal
Dignity Clause, as the Chief Justice puts it:

 

Not only do States retain sovereignty under the Constitution, there is also
a "fundamental principle of equal sovereignty" among the States. Northwest
Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16
(1960) ; Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v.
White, 7 Wall. 700, 725-726 (1869); emphasis added). Over a hundred years
ago, this Court explained that our Nation "was and is a union of States,
equal in power, dignity and authority." Coyle v. Smith, 221 U. S. 559, 567
(1911) . Indeed, "the constitutional equality of the States is essential to
the harmonious operation of the scheme upon which the Republic was
organized." Id., at 580. Coyle concerned the admission of new States, and
Katzenbach rejected the notion that the principle operated as a bar on
differential treatment outside that context. 383 U. S., at 328-329. At the
same time, as we made clear in Northwest Austin, the fundamental principle
of equal sovereignty remains highly pertinent in assessing subsequent
disparate treatment of States. 557 U. S., at 203.

 

Here's what Katzenbach said:

 

[T]he Act intentionally confines these remedies to a small number of States
and political subdivisions which, in most instances, were familiar to
Congress by name. [n35] This, too, was a permissible method of dealing with
the problem. Congress had learned that substantial voting discrimination
presently occurs in certain sections of the country, and it knew no way of
accurately forecasting whether the evil might spread elsewhere in the
future. [n36] In acceptable legislative fashion, Congress chose to limit its
attention to the geographic areas where immediate action seemed necessary.
See McGowan v. Maryland, 366 U.S. 420, 427; Salsburg v. Maryland, 346 U.S.
545, 550-554. The doctrine of the equality of States, invoked by South
Carolina, does not bar this approach, for that doctrine applies only to the
terms [p329] upon which States are admitted to the Union, and not to the
remedies for local evils which have subsequently appeared. See Coyle v.
Smith, 221 U.S. 559, and cases cited therein.

 

As for NAMUDNO, the Chief just threw this notion out there, now embedded in
the law: "But a departure from the fundamental principle of equal
sovereignty requires a showing that a statute's disparate geographic
coverage is sufficiently related to the problem that it targets."  

 

>From where in the text and history of the Constitution this "sufficiently
related" test come?

 

Adam "Dignity. Always dignity" Bonin
The Law Office of Adam C. Bonin
1900 Market Street, 4th Floor
Philadelphia, PA 19103
(215) 864-8002 (w)
(215) 701-2321 (f)
(267) 242-5014 (c)

adam at boninlaw.com

http://www.boninlaw.com <http://www.boninlaw.com/> 

 

 

 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jonathan
Adler
Sent: Tuesday, June 25, 2013 5:42 PM
To: richardwinger at yahoo.com; law-election at uci.edu
Subject: Re: [EL] simple-minded question about Shelby County decision

 

I think this question misunderstands the premises underlying the majority
opinion.  For the majority, the question is not whether a given
constitutional provision compels this result.  Rather, the question is what
provision of the Constitution authorizes this exercise of federal power.
Given that the 15th Amendment merely provides Congress with the power to
"enforce" the Amendment's guarantees through "appropriate" legislation, the
argument would be that Congress cannot be said to enforcing the Amendment's
guarantees against present threats through "appropriate" legislation insofar
as it has re-enacted a coverage formula based upon what was occurring
40-some years ago. 

 

I should note that I don't know whether I agree with the majority opinion,
as I don't feel I've studied either the 15th Amendment or the VRA enough to
have a firm opinion on the question, but I think this is the best way to
understand the majority's rationale (even if this is not quite how Roberts
explained it).

 

JHA

 

------ 
Jonathan H. Adler 
Johan Verheij Memorial Professor of Law 
Director, Center for Business Law & Regulation 
Case Western Reserve University School of Law 
11075 East Boulevard 
Cleveland, OH 44106 
ph) 216-368-2535 
fax) 216-368-2086 
cell) 202-255-3012 
 <mailto:jha5 at case.edu> jha5 at case.edu 
http://www.jhadler.net <http://www.jhadler.net/> 
SSRN: http://ssrn.com/author=183995
  

 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Richard
Winger
Sent: Tuesday, June 25, 2013 12:52 PM
To: law-election at uci.edu
Subject: [EL] simple-minded question about Shelby County decision

 


I have only read today's decision once, and that was over an hour ago.  I
could re-read it to answer my question, but I'm lazy and will ask the list.
What part of the US Constitution supports today's decision?

It can't be the 10th amendment, because the 15th amendment gives Congress
authority to act against racial discrimination in voting.

It can't be the 14th amendment.  The equal protection clause applies to
people, not states.

Today's decision seems to place the Court in the role of a
super-legislature, not a court.  The court can't strike down a law without
relying on some part of the US Constitution, so what part is it relying on?

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147

 

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