Posted by AzBlueMeanie:
Mark Graber at Balkinization blog (balkin.blogspot.com) makes a point that struck me about Chief Justice John Roberts' majority opinion in Shelby County today. The Missing Amendments:
From 1861 to 1865, the United States fought a civil
war. The outcome of the war were three
constitutional amendments, military rule in the south, and numerous federal
laws minutely regulating political procedures in the former confederate states. The constitutional significance of the Civil
War and Reconstruction remains a source of political and scholarly debate, but
no one denies that something of great constitutional importance happened during
the 1860s. Until today.
One of the
most remarkable features of Chief Justice Roberts' opinion for the Court in
Shelby County v. Holder is the almost complete absence of any reference to the
Thirteenth, Fourteenth, and Fifteenth Amendments, the Civil War, or anything
that happened during Reconstruction. The
only provisions the Chief Justice deemed relevant were the Necessary and Proper
Clause of Article I and the Tenth Amendment [the court uses an "equal state sovereignty" principle to invalidate the federal law].
In this new world, the Civil War and
Reconstruction never occurred or, as the Dunning School maintained, they
were blots on American constitutionalism that ought to be erased. The Roberts opinion reads as if a new legal principle is emerging, later
constitutional provisions are interpreted and modified in light of earlier
provisions, rather than earlier provisions being interpreted in light of later
For a court that can spout
originalism when the Second Amendment is on the table, the silence about the
original meaning and practice of the Reconstruction Amendments is deafening
(note how Jack Balkin caught the complete lack of references in Fisher to the race
conscious measures the Reconstruction Congress passed at the same time the
Fourteenth Amendment was framed). See, Why Fisher is Important.
* * *
[T]he crucial issue in Shelby County should have been the
extent to which the Constitution of 1868 incorporated 18th century
notions of federalism rather than the majority’s apparent belief that their
version of the Tenth Amendment, like state equality in the Senate, is immune
from constitutional revision.
County highlights another disturbing feature of contemporary American
constitutional politics. We celebrate
Brown and regard the dead or dottering persons responsible for the destruction
of Jim Crow as heroes. Still, think of
how few politicians have successfully gained office by claiming that they were
for racial equality long before this was a cause embraced by every decent human
Think also of how many prominent
figures held office who opposed Brown (or some other civil rights icon), and
came to support that decision only when doing so was politically the only
option and when Brown could be used as a weapon against other demands for
racial equality. So the judicial
majority in Shelby County celebrates a voting rights act no member of which has
ever read liberally as they now claim its time has past.
The Voting Rights Act of 1965 was intended to make the promise of the 15th Amendment a reality, to secure the rights of African-Americans to vote. The 15th amendment was the constitutional foundation ("Section 2. The Congress shall have power to enforce this article by appropriate legislation") for the Voting Rights Act of 1965.
And yet the Chief Justice and the conservative activist Justices, who have long been hostile to the civil rights acts and the Voting Rights Act, engaged in a Neo-Confederate "states' rights" Tentherism analysis to invalidate a key provision of the most important piece of civil rights legislation in American history, and by extension, weaken the 15th Amendment.