Notes on a Theory…

Thoughts on politics, law, & social science

State are not Sovereign: The Supreme Court and Voting Rights

with 4 comments

[Update: For a sense of legal landscape in the wake of the Supreme Court’s decision, read The Way Forward After Shelby County by Joey Fishkin]

The Supreme Court has struck down Section 4 of the Voting Rights Act (pdf), rendering Section 5 inoperable until Congress changes Section 4 (assuming Congress can and there is anything Congress could pass that the Supreme Court would allow, which is unclear).  I addressed the most fundamental conservative objection to the Voting Rights Act after oral arguments – that it is a “racial entitlement”.

Generally speaking, you should just read Justice Ginsburg’s dissent, which righteously shreds Chief Justice Roberts’, and Jessica Mason Pieklo.

I wanted to address something a little more abstract.

Roberts’ opinion repeatedly references ‘state sovereignty’ as an (unenumerated) constitutional principle that supposedly overrides the enumerated power of Congress to enforce the 15th Amendment through appropriate legislation. Let’s leave aside the issue of enumeration, and of the case law (Ginsburg dispatched that handily).  The bigger problem with this is that it’s absurd.

The Constitution makes clear that sovereignty is not vested in governments. It is vested in the people. Neither the states nor the federal government are sovereign. (Yes, don’t miss that second part – and let’s not pretend that a war settles constitutional questions either). From the opening words of the preamble of the original Constitution to it’s final clause, from the beginning to the end of the Bill of Rights, the basic, most fundamental constitutional principle is popular sovereignty. The entire process of ratification, by conventions rather than by state governments, only makes sense if you begin with popular sovereignty.

Literally every other principle we associate with American constitutionalism–separation of powers, federalism, enumerated powers–flows from this basic principle.

Roberts claims that using this idea of state sovereignty to sharply limit the federal government’s role in protecting the right to vote advances the cause of liberty.

Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10. This “allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.” Bond v. United States, 564 U. S. ___, ___(2011) (slip op., at 9). But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” Ibid. (internal quotation marks omitted).

Except, as this case shows, it doesn’t. Here the state is undermining those liberties by erecting barriers to the right to vote and the federal government is intervening to protect those liberties.  And that is exactly what the Civil War Amendments were all about – giving the federal government power to ensure that states are not threatening the rights of their own citizens.  Here’s Ginsburg:

It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Consti­tution read in light of the Civil War Amendments. No­ where in today’s opinion, or in Northwest Austin, is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. Notably, “the Founders’ first successful amendment told Congress that it could ‘make no law’ over a certain domain”; in contrast, the Civil War Amendments used “language [that] authorized trans­ formative new federal statutes to uproot all vestiges of unfreedom and inequality” and provided “sweeping en­forcement powers … to enact ‘appropriate’ legislation targeting state abuses.” A. Amar, America’s Constitution: A Biography 361, 363, 399 (2005). [snip]

The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. [my emphasis]

The federal government is specifically vested with the power to act to protect popular sovereignty from state efforts to undermine it.

We should be far more concerned about the indignity of preventing African-Americans and Latinos from voting than the indignity of differential treatment of states. Besides, the effort to block African Americans from voting is what robs a state of its dignity – not federal efforts to stop this, which again are expressly constitutionally authorized.

Whether you reason from the principle of popular sovereignty, or from the related principles of democracy and equality, there really is only one position when it comes to voting rights that makes sense: universal voting rights for citizens over the age of 18 (at least). Any and all rules or structures that makes voting harder (that is, new barriers or those in place for some voters but not others) should be illegal. Any but the most incidental of costs should be borne by the government not voters. (This is essentially the position of Mark Pocan and Keith Ellison who have proposed a constitutional amendment to protect voting rights).

Can Democrats mobilize voters around voting rights while committing to something more than a token response? Can they avoid their normal approach of seeking to narrowly target their efforts to the most ‘deserving’ victims, a position that at bests wins modest gains while undermining solidarity? That remains unclear. I’ll give Douglas Williams the last word:

While we will mourn the loss of a key tool in the fight against disenfranchisement today, we must get back up and keeping fighting tomorrow. The politics of division, fear, and reaction must not have the last word in the South. We must take a lesson from those in North Carolina and in Texas, and let our elected officials know that Southern progressivism will not go quietly into the good night, and that we will be there to have our voices heard every time our state legislatures take the side of oppression over justice.


Written by David Kaib

June 26, 2013 at 9:24 am

4 Responses

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  1. Well said.


    June 26, 2013 at 3:09 pm

  2. […] House Republicans reacted to the Supreme Court ruling by saying that in coming days they will introduce a constitutional amendment to altogether ban same-sex marriage forever. It’s not likely to go anywhere; I haven’t read anything that has taken it seriously; Democratic congresspersons would never allow it. And the Supreme Court probably wouldn’t either. Their ruling today was largely a reminder to Congress that they don’t have the constitutional authority to make laws which discriminate against people (which is odd considering the ruling from the day before, on the Voting Rights Act (VRA), which gave many states and jurisdictions who have in the past harshly discriminated against minorities to resume doing so – though, as the Washington Post points out, that is largely Congress’s fault for not taking the Supreme Court’s message seriously back in 2009, that if a case about this were to come up again they would take down the VRA, as, so they claim, it no longer serves its original purpose [look up Justice Ginsburg's response for an answer to that claim]). (Also see: Notes on a Theory…’s essay.) […]

  3. […] Tuesday I discussed the Court’s decision in the Shelby case, striking down Section 4 of the Voting Rights Act, as a […]

  4. […] of the Constitution, something we have made great progress on in the interim despite how much work  remains to be […]

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