Toward a Fundamental Right to Evade Law? The Rule of Power in Shelby County and State Farm (original) (raw)

Beyond its important impact on voting rights, Shelby County, Alabama v. Holder 1 advances a constitutional vision that inverts the rule of law, so that government authority becomes particularly illegitimate when it constrains institutional power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, 2 a 2003 Supreme Court ruling involving a different subject area, governed by state rather than federal authority. Despite these differences, both cases similarly assert new federal judicial power to override government efforts to prevent unlawful gain from exploitation of racial and economic inequality. Authority becomes legitimate-the rule of law rather than personal whim-when it must account for its actions with explanations and evidence subject to outside evaluation for consistency, truth, and value. In theory, the U.S. constitutional system holds government to account through democratic elections-a goal crucially advanced by the Voting Rights Act 3 and also through different degrees of judicial scrutiny of the justifications for government action. In general, constitutional doctrine requires federal judges to defer to the factual determinations and value judgments of other branches as long as these can be supported by some plausible reason (even if the reasons are not persuasive or proven). For some particularly exceptional areas of heightened constitutional concern, however, judges can demand that government action have stronger support in order to be valid law. I. Uneven Concern for States' Rights? Shelby County invalidated the coverage formula of the Voting Rights Act on the ground that it was an irrational use of Congress's constitutional power to enforce the Fifteenth Amendment's protection against race-based