In a talk given at Muhlenberg
College, Professor Scott Lemieux from St. Rose College delivered a lecture
titled "From the Party of Lincoln to the Party of Calhoun: The Supreme
Court and Voting Rights in Historical Perspective," in which he discussed
how the differing views of the Republican party during the civil war era
concerning state sovereignty and popular sovereignty relates back to modern
Supreme Court’s decisions, most specifically Shelby Co. vs. Holder (2013). When the Republican Party was
founded, it was a loose bunch of abolitionists founded on the belief that citizens
had rights over other entities like the state. John C. Calhoun, a Democrat of
the time believed in the exact opposite, that states should have equal sovereignty
and power over the citizens, a notable characteristic of those who are
pro-slavery. However, 150 years later in a Supreme Court case handed down by Republican
appointed Chief Justice John Roberts, he argues on the basis of equal state
sovereignty that a section of the Voting Rights Act was unconstitutional
because it forced states to have to report voting laws to the Department of
Justice. Many issues come into play concerning how this devolution of voting
rights goes far beyond what happened in the Supreme Court.
In this post, we will examine Lemieux’s lecture concerning the impact of this decision being forgotten or generally ignored by Congress, and more notably
influenced by everyday society, and what citizens can do to insure the
safety of any person from voter disfranchisement.
Early in
his talk, Lemieux discussed at length the Roberts decision, and how he argued that
all states should enjoy equal sovereignty, but failed to mention a single case
as precedent in this decision, leading the
theory of the counter-majoritarian difficulty comes to play. The section of the
Voting Rights Act that was struck down in Shelby
Co. concerned preventing voting disenfranchisement of minorities from occurring
in places where it had happened in years past and this was done by having any
changes in voting laws in these places to have to be reported to the Department
of Justice, in other words saying that the government “did not trust these
states” according to Lemieux. Roberts in essence said that all states needed to
enjoy equal sovereignty, and this could clearly not be done, if some states
were held to this provision of the VRA and some were not. However, as Lemieux
mentioned the only case with even similar language to what Roberts said here
was the most infamous case in Supreme Court history: Dred Scott v. Sanford (1857), so it was not surprising Roberts failed
to mention that in his decision. This disturbing change in Republican thought
represents the worst kind of a concept described by legal theorist Alexander
Bickel as the counter-majoritarian difficulty. This theory argues that judicial
review itself is illegitimate because it gives nine unelected officials the
ability to overrule the lawmaking of elected officials who represent the majority,
but in some cases it also allows for the Supreme Court to protect minorities
who are underrepresented which is the upside of this theory. However, in Shelby Co. the court actually prevented
the majority from helping the minority, which reflects terribly on the court
itself, but is that really all there is to the story? Lemieux does not think
so, and he rejects this simplistic review of Roberts’ decision, as his talk
travels back in time to try to explain why this decision was made.
A
question posed early in the talk is if section two of the fifteenth amendment
gives Congress alone the power to enforce voting rights, why was this section
of the Voting Rights Act struck down? Lemieux did not have an answer to that
question, but he does remind us that there is more to the story than a
negligent Supreme Court, if that is even the case. In section two of the
fourteenth amendment it charges with Congress with having the power to protect
the citizens from disenfranchisement if it occurs. However, less then two
decades later, the court struck down the Civil Rights Act of 1875 --an act very
similar to the Civil Rights Act of 1964-- by saying it went beyond Congress’s
enforcement powers under the fourteenth amendment, and one may argue that this
is simply another case of Shelby Co.
when it comes to the counter-majoritarian difficulty, but in actuality Congress
could have gone back after the Supreme Court ruled against the bill to change
it, but by this time Reconstruction was over and Congress had moved on, civil
rights was no longer a main issue. Also, during the time before it was struck
down, Congress did very little to enforce the legislation, in other words
passing this law was a last gasp for civil rights for almost the entire next
century. Fast forward to 2006, the Voting Rights Act was voted to be extended
by huge bipartisan majorities, but just because Congress voted this way does
not mean they are strong proponents of voting rights, just that they did not
want to look like they were against such landmark legislation. This
indifference to voting rights is most clearly shown right now as Roberts in his
Shelby Co. decision does not say that
Congress cannot embrace a formula to protect against voter disenfranchisement,
it only says that the formula that was in place was unconstitutional. Thus, Congress
could be working to come up with a new formula in order to insure that voting
rights are safe for everyone, but as the current Congress continues to falter,
that does not seem to be on anyone in Congress’s agenda at this point.
Though,
the discussion of how the counter-majoritarian difficulty was too simplistic of
a way to characterize the court’s decision and how the Supreme Court is often
made to look like a villain for their decisions instead of turning to the faltering
of Congress is important, but they do not clearly explain the Republican party
shift over the past century and a half. An important fact that Lemieux adds
that many overlook is that the court rarely does stray from the mainstream, starting
with Roger Taney in Dred Scott, none
of his decision was anything different than what he believed as the attorney
general for Andrew Jackson, and a majority of people in America wanted the case
to be decided exactly how it was. Furthermore, in the 1950’s when the Civil
Rights movement was again picking up, the national consensus was in favor of
the integration of schools, so the Supreme Court acted in a unanimous decision
in Brown v. Board of Education (1954)
doing just that. Now, as America moves into the 2010s, an increasing number of
people felt that this section of the VRA was extraordinary and unnecessary, and
the Supreme Court not seeing enough support for the people who might be
effected by this alteration to the law felt that it was time for a change.
Lemieux’s argument in essence is not that Roberts is a radical who wants to
return America to the days of voter discrimination or even that there was much
change in the Republican party at all, but instead that the Supreme Court
decisions are made more upon the nature how the issue is being discussed in the
media or at all, and that is usually the way the decision will fall. Thus, that
does not mean people who are against the court’s decision in Shelby Co. should
give up, because as Lemieux says Congress cannot be let off the hook –as they
have the power to redo the formula— and it is important for people to not give
up, but feel compelled to take action, and let Congress and the Supreme Court
know American citizens feel strongly about insuring equal voting rights for
all.
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