Bench Memos

Silly Washington Post Op-Ed on Shelby County v. Holder

The Washington Post has a Sunday op-ed on the Voting Rights Act by President Obama’s former White House counsel Gregory B. Craig. Most of the article (until the last three or four paragraphs) is about the author’s laudable voter-registration efforts in 1965 Mississippi and a conversation he had back then with one of his Harvard professors. He then, finally, gets to the point of the piece, which is to assert that, because the 15th Amendment gives Congress “power to enforce this article by appropriate legislation,” therefore Congress should not strike down Section 5 of the Voting Rights Act in Shelby County v. Holder

Now, I know the Post is liberal, but I must say that I am surprised it would print an op-ed so breathtakingly unpersuasive. It ignores the basic point made by those challenging Section 5, which is precisely that the South of 1965 is not the South of today, by whatever metric you choose to measure discrimination. And not only does the piece ignore history, it also ignores the text and meaning of the Constitution. So I posted this at the end of the op-ed on the Post’s website:

Here’s why Section 5 of the Voting Rights Act is bad policy, outdated, unconstitutional, and ought to be struck down by the Supreme Court:

What’s especially ironic is that the principal use to which Section 5 is put today is forcing jurisdictions to create and maintain racially segregated and gerrymandered voting districts — which is completely at odds with the original ideals of the Civil Rights Movement. BTW, there are other laws to protect the right to vote besides Sec. 5.

This second link addresses in particular the issue of how much deference the Court owes Congress: Some have claimed that the 14th and 15th Amendments were intended to give Congress essentially unreviewable authority to pass legislation in this area, but there’s no textual or historical support for that claim, and those claiming this cannot really mean it. Suppose, for example, that Congress passed legislation that said only blacks could vote (or suppose, for that matter, that it passed legislation that said only whites could vote); or that every black person could have two votes (or for that matter, every white person could have two votes); or that African Americans could be elected to the House of Representatives when they were only 15 years old, and to the Senate when they were only 20 years old; or that states with an African-American population of at least 20 percent were allowed to have three senators rather than two; etc. No judicial review of any of that?

The 15th Amendment says that legislation passed by Congress to enforce the Amendment is to be ‘‘appropriate.’’ There is nothing in the text to suggest that Congress intended to insulate such legislation from judicial review to make sure it is indeed “appropriate.” This same language, by the way, is used in a number of other constitutional amendments.


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