Huh? RFRA wasn't struck down because it restricted the rights of a minority. It's more accurate to say that it was struck down because it gave a minority too much protection against the majority. Same with Garrett. And Morrison is essentially the same, leaving aside that women are a numerical majority.
-----Original Message-----
From: "David Epstein" <"de11@wulaw.wustl.edu>
Subj: Re: VRA update
Date: Thu Jul 20, 2006 4:18 pm
Size: 3K
To: <Mark.Scarberry@pepperdine.edu>
cc: <election-law@majordomo.lls.edu>
98-0 in the Senate. Amazing.
I have to agree with the comments to the effect that a large majority
does not necessarily insulate the bill from the Court. But in most other
cases where the Court struck down legislation with strong support from
Congress, it was because the legislation unduly trampled on the rights
of a minority (like RFRA), and that's what the Court is there to prevent
from happening. Here, they'd have to prevent an overwhelming majority
from *protecting* the rights of minority citizens. As I said, a game of
chicken.
On the other hand, it must strike others as at least worth pondering why
this bill would pass with the (strong) support of Republicans in
Congress and the White House, as David Becker proudly points out. It
might be, of course, that Republicans have seen the light and, in line
with the President's speech today, are trying to out-Democrat the
Democrats in search for more electoral support from the minority
community. A kinder, gentler Republican party desperate to stay in power
and willing to look anywhere for support, even at the risk of taking
actions unpopular with their base.
But there's also the possibility that this bill helps further
Republican's electoral and policy goals. Electorally, as we well know,
both Republicans and minorities can come out ahead, at the expense of
non-minority Democrats. But policy-wise? I don't see it. It's for these
reasons that I, and others I've talked to, remain apprehensive about the
long-term policy implications of what's just happened.
On 7/20/06, Scarberry, Mark <Mark.Scarberry@pepperdine.edu> wrote:
It is also possible that the Court could be interested in avoiding a
decision on the constitutionality of a statute that was passed by a
narrow margin, due to the possibility that a change in Congress could
lead to repeal of the statute, which would then make a decision
unnecessary. I suppose that such an avoidance approach could skew the
statistics by causing a lot of the statutes that are held to be
unconstitutional to be those that were passed by large margins.
Mark S. Scarberry
Pepperdine University School of Law
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto: owner-election-law_gl@majordomo.lls.edu] On Behalf Of Smith,
Brad
Sent: Thursday, July 20, 2006 12:11 PM
To: election-law
Subject: RE: VRA update
If one thinks of many provisions of the Constitution as intended to
protect minority rights, or to limit government action, I can see strong
theoretical support for suggesting that a bill passing congress by large
margins is more likely to be unconstitutional than one passing by a
narrow margin.
Personally, I doubt very much that the Court will find the VRA
unconstitutional.
Brad Smith
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Marty
Lederman
Sent: Thu 7/20/2006 12:07 PM
To: David Becker; election-law
Subject: Re: VRA update
Oh, don't get me wrong: I'm not remotely suggesting either that Boerne
was rightly decided, or that the next VRA case won't be distinguishable.
I was simply pointing out, as did Sam, that the Court could not care
less how overwhelming the vote in Congress was. Indeed, there might
even be a slight (and unfortunate) assumption by the Court that
overwhelming consensus is a signal of grandstanding and symbolic
legislation -- or proof of a too-powerful national legislature
insensitive to the interests of the states and willing to run roughshod
over them.
I am not approving such a view. Still, it is striking that, come to
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