Toward a Fundamental Right to Evade Law? The Rule of Power in Shelby County and State Farm (original) (raw)
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The Berkeley Journal of African-American Law & Policy, 2015
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
Shelby County v. Holder: When the Rational Becomes Irrational
2014
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812 R I. THE HISTORICAL AND LEGAL CONTEXT LEADING UP TO SHELBY COUNTY . . . . . . . . . . . . . . . 815 R A. The Disenfranchisement of African Americans Prior to the Enactment of the Voting Rights Act . . . . . . . . . 815 R B. The Adoption of the Voting Rights Act of 1965 . . . . 817 R C. Unsuccessful Challenges to the Section 5 Preclearance Scheme and Reauthorizations of Section 5 in 1970, 1975, and 1982 . . . . . . . . . . . . . . . . . . . 819 R D. The 2006 Reauthorization and the Northwest Austin Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 822 R II. GAME CHANGE: SHELBY COUNTY V. HOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 R A. The Congruence and Proportionality Test Would Have Required the Court in Shelby County to Consider Factors It Largely Ignored . . . . . . ...
Bepress Legal Series, 2006
Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. This is an expected distinction, as President Johnson asked for and ultimately signed the "goddamnedest toughest" legislation possible. But the President and the 89 th Congress could not do this important work alone. They knew that the substantive provisions of the statute presented a difficult challenge to established constitutional norms and for this reason they offered a broad and expansive statutory canvass. In so doing, and as this Article argues, they implicitly enlisted the U.S. Supreme Court as a key player in the fight against voting discrimination. Unsure about the constitutional boundaries at issue, Congress and the administration left many things unsaid, wishing for the Court to extend the substantive provisions of the Act as far as constitutionally permissible. This account turns the conventional wisdom on its head. The Warren Court-widely considered a bastion of liberal policy-making and judicial activism-interpreted the statute precisely in accordance to congressional wishes. Yet this proved to be a risky strategy, for as soon as the Court's composition changed, so did its collective view of the statute. In other words, it is the Rehnquist Court who has demonstrated a penchant for judicial activism under the guise of strict constructionism. As Congress debates the upcoming extension of the Voting Rights Act in 2007, this is a condition of the Act to which Congress must close attention.
Shelby County v. Holder: Nullification, Racial Entitlement, and the Civil Rights Counterrevolution
2015
issue of political philosophy: rather, it became synonymous with trepidation of 9 Samuels: Shelby County v. Holder: Nullification, Racial Entitlement, and t Published by Digital Scholarship @ Texas Southern University, 2015 Samuels Shelby County v. Holder 197 outside interference with their perceived inalienable right to perpetuate their peculiar institution. Further, Calhoun invokes the names of Thomas Jefferson and James Madison, authors of the Virginia and Kentucky Resolutions of 1798 that were penned in response to the hated Alien and Sedition Acts. The aim of Calhoun and his compatriots goes beyond the desire to give their contemporary act of defiance more respectability. Rather, they assert that the Union constitutes a “compact” in which sovereign states had combined in order to establish a national government. All powers other than those specifically delegated to the national government in the Constitution remain within the sovereignty of the separate states. Accordingly, the...
State's Rights, Last Rites, and Voting Rights
SSRN Electronic Journal, 2000
There are two ways to read the Supreme Court's decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is a problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward.
Race, Federalism, and Voting Rights
SSRN Electronic Journal, 2000
In Shelby County v. Holder,' the Supreme Court struck down Section 4 of the Voting Rights Act ("VRA") on the grounds that the Act violated "basic principles" of federalism and the equal sovereignty of the states. 2 Though the debate over "our federalism" is a longstanding one, federalism considerations in the context of voting rights are of more recent vintage. Indeed, notwithstanding the fact that Congress enacted the VRA nearly fifty years ago, it was not until thirty years later, in Miller v. Johnson, 3 that a majority of Justices first alluded to the "federalism costs" of the VRA. 4 By 1997, in Reno v. Bossier Parish School Board, 5 these costs had become "serious." And in Charles S.