Making Sense of Shelby County

In several places I’ve seen the same question posed about the majority opinion in Shelby County v. Holder: “What part of the Constitution supports the decision?” Steve Benen, for instance, writes:

as I read the ruling (pdf) this morning, I was looking for something specific: why the court majority considers Sec. 4 of the Voting Rights Act unconstitutional.

I’m not an attorney, so I’ll concede my background is limited, but in the rulings I’ve read striking down federal laws, there’s some kind of explanation as to the part of the Constitution the law ostensibly contradicts. A statute violates the First Amendment, or the Commerce Clause, or the Due Process clause, etc., and is therefore unlawful.

So on what grounds, exactly, did the court find Sec. 4 of the VRA unconstitutional? I have no idea.

Phrased this way, the question misunderstands the premises underlying the majority opinion and, as a consequence, illustrates a fairly fundamental divide between the way many on the Left and Right view questions of federal power. The Left generally sees a vast sea federal power limited by islands of protections for various rights. From that perspective, the relevant question is whether there is something in the Constitution (or its principles) that defeats federal legislation. Many on the Right start from a different premise: The Constitution authorizes islands of federal power in what is otherwise a sea of questions reserved to states or the people. These characterizations are broad generalizations, to be sure, but I think they capture a real divide in conceptions of federal power.

From the Right’s perspective, the question is not whether some specific provision in the Constitution invalidates Section 4 of the VRA, but whether it is expressly authorized — whether it fits on one of these islands of federal power. The argument for the Shelby County majority is that the extraordinary nature of the federal authority exercised through the VRA (as authorized by the 15th Amendment) can only be justified by extraordinary conditions. This is because the 15th Amendment only authorizes Congress to “enforce” its protections through “appropriate legislation.” Therefore, Congress has to be careful about imposing limitations on states that are not constitutionally required. In the majority’s view, justifying limits on states in 2006 based on conduct from the 1960s and early 1970s fails this test — it does more than “enforce” the 15th Amendment’s guarantees, and therefore exceeds the scope of federal power. Although the majority never says so explicitly (perhaps intentionally), this imposes limits on the 15th Amendment’s enforcement power similar to those imposed Section 5 of the 14th Amendment. the enforcement power.

This post is not a defense of Shelby County. While I am generally sympathetic to limits on federal power, the Reconstruction Amendments present different questions than the enumerated powers in Article I, Section 8 and I am not well-versed enough on the 15th Amendment and the VRA to say whether I think the majority is correct. I will note, however, that Shelby County seems to follow quite directly from NAMUDNO. And while the dissent makes some strong points, I don’t think it effectively distances itself from portions of that prior opinion and its approach to the relevant jurisprudence.

For more on Shelby County, there are some round-ups of opinion and covereage at SCOTUSBlog and the Election Law Blog.

UPDATE: I probably got the “islands of power” metaphor from Larry Solum, who makes a similar point about views of federal power in this paper.

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