Wednesday, June 26, 2013

From Justice Kennedy

"The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment."

This dovetails nicely with the error in yesterday's ruling. In yesterday's ruling Congress was exercising its "great authority to design laws to fit its own conception of sound national policy" in an effort to protect the liberty outlined in the Fifteenth Amendment.

It was not, in some comparable way, denying the liberties of the states guaranteed by, say, the Tenth Amendment because no one denies that they have the authority to pass legislation to manage states' rights insofar as they pertain to equal access to voting. That was the whole point of the Fifteenth Amendment, to add that qualifier to the Tenth.

So the court was wrong on the Voting Rights Act because it denied Congress its constitutional authority without demonstrating what it demonstrated with the Defense of Marriage Act: that Congressional action "denied the liberty protected by" the Constitution.


  1. The 10th amendment guarantees states the right to alter voting laws as they see fit. Section 5 of the VRA circumscribes that right with respect to certain states, leaving them with the ability to alter voting laws only once they have been looked over and found satisfactory by the federal government. It's not a law which prevents the introduction of voting laws that violate the 15th amendment for the obvious reason that only the courts can decide whether a piece of legislation is constitutionally valid. It's a law which enables the government to prevent the passage of laws which, in the governments opinion, violate the 15th amendment.

    How can this pre-crime concept be anything other than a violation of states rights?

    The error in the courts ruling is not that the failed to establish something that is obvious. It's that they ignored it and continued along the strange path of viewing some parts of the constitution as more constitutional than others, allowing the government to violate the 10th amendment with the idea that in doing so they might better protect the 15th. They should've ruled section 5 unconstitutional outright rather than merely instructing he government to produce a revised rationale for it's illegal conduct.

  2. The Supreme Court did not deny the Congress the ability to engage in pre-clearance procedures (anyone who read the decision instead of reading an article on MSNBC knows this). It merely stated that the Congress' scheme was so outdated as to violate the principles of federalism. Unless you're willing to argue with a straight face that in the year 2013 that the Bronx, various voting districts in Michigan, and the city of Los Angeles are such havens of discrimination that they require pre-clearance then it is hard to see how Congress' so-called current demarcation (going back to 1965 and not changing since then) makes any logical sense. Note that section 2 remains in place (which applies to the entirety of the country) and it again remains within the power of the Congress to engage in pre-clearance requirements. In other words, Shelby county's efforts were an as applied challenge and they won. The Court reached the correct result.


All anonymous comments will be deleted. Consistent pseudonyms are fine.