The majority opinion in Shelby acknowledges that racial discrimination in voting continues, but notes that the situation has improved since 1965 and that the procedures in the current Voting Rights Act do not make a clean fit with the current forms and pattern of discrimination. Ordinarily however a federal statute is not invalidated on the ground that it’s dated. I hardly think the Supreme Court justices believe (as did Alexander Bickel) that “desuetude” is a constitutional doctrine. And the criticisms of the statute in the majority opinion are rather tepid. That’s why the court’s invocation of “equal sovereignty” is an indispensable prop of the decision. But, as I said, there is no doctrine of equal sovereignty. The opinion rests on air.
Wednesday, June 26, 2013
Shelby decision is just the worst
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Posner's argument is weak. First of all, while a federal statute may not simply be invalidated because it is dated, changing circumstances may certainly render a statute unconstitutional. An otherwise unconstitutional law justified by exigent circumstances will most likely not be justified decades later. Even landmark civil rights decisions like Brown v. Board of Education were based in large part on the notion that "we cannot turn the clock back" and rather must consider these issues based on the "full development" of the area being addressed. This is a longstanding notion, and Poser simply ignores it.
Furthermore, this is not so much about an imaginary doctrine of "equal sovereignty" as it is about upholding the rights of the states to enact legislation without the permission of the federal government. Even with the expansive interpretation given federal powers today, the mere ability to enact legislation regarding elections is certainly delegated to the states. The idea that states have to ask permission from the federal government to do such a thing was an extraordinary remedy and can't be based on a decades-old formula; they must be based on contemporary circumstances to be justified.
Finally, Posner's appeal to the McDonald opinion is simply nonsense. The Second Amendment was not written as a right guaranteed to the states. It was very clearly written as an individual right. The ratifiers could have written "the right of the states to keep armed militias shall not be infringed," but they didn't. Furthermore, when the Second Amendment was incorporated vis-a-vis the 14th Amendment, Congressman Bingham (who introduced it) as well as others specifically mentioned incorporating the second amendment against the states. The right to deny citizens the right to keep and bear arms was a "state's right" that was specifically addressed by the 14th Amendment, and Posner knows it. He just wishes it weren't so.
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