Shelby County v. Holder: Constitutional Principles Explained In Plain English


Reading Supreme Court opinions can be a slog. They are filled with citations and quotations from other cases, many unimportant. The arguments appear overburdened. When it comes to these important constitutional cases, sometimes the Court ought to consider writing opinions in plain English so the public can understand the true principles and motivations behind them. Here is an attempt to rewrite, in plain English and with some of my own additions, the principles behind Tuesday's Voting Rights Act case.

The Constitution, as amended by the Civil War Amendments, enshrines two broad and important principles — the first, that the Federal Government is one of limited and enumerated powers, with remaining power reserved to the States; and second, that the Federal Government may enforce against the States provisions in the Fourteenth and Fifteenth Amendments guaranteeing Due Process, Equal Protection, voting rights, and most of the rest of the guarantees of the Bill of Rights. Often, these two grand principles conflict. For example, a State usually has the power to make generally applicable laws, such as those governing zoning or drug use. These are powers reserved to them in the Constitution. Yet the First Amendment, as enforced against the States through Section 5 of the Fourteenth Amendment, guarantees the free exercise of religion. What if a generally applicable law, such as one banning use of the drug Peyote, effectively prohibits the free exercise of a religious sect? If Congress were to prohibit such a law, it would be treading a precarious balance between enforcing rights against the States and ensuring that the States still have the power to operate in the realms traditionally reserved to them by the Constitution.  

The Supreme Court has, for better or worse, resolved this tension of constitutional law. When it comes to Fourteenth Amendment cases — or those involving most of the Bill of Rights — Congress may only enforce those rights as they have been defined by the Supreme Court. Put differently, Congress cannot decide that the Free Exercise Clause means more than what the Supreme Court says it means. Usually, conservatives ought to recoil at such a proclamation: after all, Congress has (or used to have) an independent duty to interpret the Constitution. But there may be no alternative when it comes to finding a balance between federalism and the enforcement of rights. If Congress can come up with its own, expansive understanding of rights, then it can effectively eviscerate reserved State power at whim. Thus, permitting Congress to enforce only those rights as the Supreme Court defines them may be the only resolution.

A second requirement for enforcement of rights against the States — that is, for passing federal legislation in areas traditionally reserved to the States, but which vindicate important constitutional rights — is that the enforcing laws be “congruent and proportional” to the harm they are addressing. This is not the language the Court has used in Fifteenth Amendment cases; but the principle is or ought to be the same for that amendment as it is for the Fourteenth Amendment. Congress must be allowed to vindicate constitutional rights, but it must also not encroach too greatly on the powers reserved to the States. Thus, when there is a violation by a State of a constitutional right as that right has been defined by the Supreme Court, the federal law remedying that violation must have a reasonable fit to the underlying violation. Otherwise, it would be an excessive encroachment on traditional State power.

And thus we come to today’s Voting Rights Act. Congress has the power to enforce the guarantees of the Fifteenth Amendment against the States. But the enumeration of powers, or the structure of federalism, still permits the States broad authority in the area of running and managing local, state, and even federal elections. Thus, when remedying a violation of the Fifteenth Amendment, the enforcement statutes must have a reasonable fit to the underlying constitutional violations. That way, Congress can enforce the protected constitutional right, but the States may maintain the powers guaranteed to them by the Constitution. The Voting Rights Act, as applied to conditions today, is not a reasonable fit to the purported, underlying violations of the Fifteenth Amendment. Its coverage formula is decades old and does not reflect the reality that the covered jurisdictions violate the Fifteenth Amendment far less frequently than many uncovered jurisdictions do. Thus, this formula is struck down and it must be rewritten in order for Congress to walk the proper line between enforcing rights and not encroaching against traditional State power.