How would Scalia* justify voting down the VRA now while claiming it was Constitutional then? If the Constitution is not a "living document", that which was Constitutional in the 1960s should be Constitutional now.
Could it be argued that whatever need that was present then is no longer now?
It's not that the Constitution necessarily changed, but rather that the circumstances warranting whatever policy that would otherwise be unconstitutional changed. We allow restrictions of basic rights, for instance, provided a compelling need is demonstrated and the law in question is properly tailored to that need. So if either the need subsides, or the landscape changes such that the law is no longer properly tailored to the need, what was once constitutional could become unconstitutional.
Not sure how this applies to the VRA, if at all. But in general.
Except Scalia is all about how the Constitution is a static document. If the VRA was Constitutional in 1965, according to his paradigm it should be Constitutional now. Otherwise, its an outcome based approach that he supposedly abhors.
But even under living document theories, the challenge is bogus. If the Congress has authority to enforce the 14th and 15th Amendments through appropriate legislation - which it explicitly does - then unless another Constitutional limit is applied Section 5 is applicable. Congress reviewed a large amount of evidence to justify the extension of the VRA including Section 5. That means that its not the Court's place to judge whether or not the law is a good law or not. Its their job to determine whether there is any rational basis for linking the legislation to the stated power. And there clearly is.
(f) Congress, as against the reserved powers of the States, may use any rational means to effectuate the constitutional prohibition of racial voting discrimination. P. 383 U. S. 324.
g) The Fifteenth Amendment, which is self-executing, supersedes contrary exertions of state power, and its enforcement is not confined to judicial invalidation of racially discriminatory state statutes and procedures or to general legislative prohibitions against violations of the Amendment. Pp. 383 U. S. 325, 383 U. S. 327.
(h) Congress, whose power to enforce the Fifteenth Amendment has repeatedly been upheld in the past, is free to use whatever means are appropriate to carry out the objects of the Constitution. McCulloch v. Maryland, 4 Wheat. 316; Ex parte Virginia, 100 U. S. 339, 100 U. S. 345-346. Pp. 383 U. S. 326-37.
..
(j) Congress is well within its powers in focusing upon the geographic areas where substantial racial voting discrimination had occurred. Pp. 383 U. S. 328-329.
(k) Congress had reliable evidence of voting discrimination in a great majority of the areas covered by § 4(b) of the Act, and is warranted in inferring a significant danger of racial voting discrimination in the few other areas to which the formula in § 4(b) applies. Pp. 383 U. S. 329-330.
(l) The coverage formula is rational in theory, since tests or devices have so long been used for disenfranchisement, and a lower voting rate obviously results from such disenfranchisement. P. 383 U. S. 330.
(m) The coverage formula is rational as being aimed at areas where widespread discrimination has existed through misuse of tests or devices even though it excludes certain areas where there is voting discrimination through other means. The Act, moreover, strengthens existing remedies for such discrimination in those other areas. Pp. 383 U. S. 330-331.
One of the dangers of Scalia's type of "Party First!" jurisprudence is that it has all sorts of unexpected downstream effects, because the law is based on logical arguments. Every time the Supreme Court twists itselfs into knots to justify something to benefit the GOP, it creates distorted precedents that lawyers can trot out to apply to all sorts of cases.
Section 5 of the Voting Rights Act specifies the states and counties who must gain approval from the federal government for any changes to voting laws.
The 10th amendment (broadly) states that any powers not explicitly delegated to the federal government in the constitution are considered to be held by the states.
The 15th amendment states that no citizen should be denied the right to vote based on race.
SCOTUS is considering the VRA in the context of:
a) Providing a piece of legislation that prevents end-runs around the 15th amendment (for example, the "Literacy Tests" that were the original catalysts of the VRA disenfranchising African American citizens).
b) That applies equitably (but not necessarily equally) to the various states and counties.
c) That does not restrict the states powers in a manner not enumerated by the constitution.
Except Scalia is all about how the Constitution is a static document. If the VRA was Constitutional in 1965, according to his paradigm it should be Constitutional now. Otherwise, its an outcome based approach that he supposedly abhors.
That's not strictly accurate - taken to its logical conclusion, that would mean that Scalia would never even consider overturning any previously upheld law. The "get out of jail" clause (as it were) is that the interpretation of the constitution has not changed, it was the original judgement that was in error - i.e. the constitution is hunky dory, it was those danged humans that screwed up.
Section 5 of the Voting Rights Act specifies the states and counties who must gain approval from the federal government for any changes to voting laws.
The 10th amendment (broadly) states that any powers not explicitly delegated to the federal government in the constitution are considered to be held by the states.
The 15th amendment states that no citizen should be denied the right to vote based on race.
SCOTUS is considering the VRA in the context of:
a) Providing a piece of legislation that prevents end-runs around the 15th amendment (for example, the "Literacy Tests" that were the original catalysts of the VRA disenfranchising African American citizens).
b) That applies equitably (but not necessarily equally) to the various states and counties.
c) That does not restrict the states powers in a manner not enumerated by the constitution.
But in the original decision the Court explicitly said
a1) "A variety of methods was used thereafter to keep Negroes from voting, one of the principal means being through racially discriminatory application of voting tests."
a2) "Congress, whose power to enforce the Fifteenth Amendment has repeatedly been upheld in the past, is free to use whatever means are appropriate to carry out the objects of the Constitution."
b1) "The Act's voluminous legislative history discloses unremitting and ingenious defiance in certain parts of the country of the Fifteenth Amendment (see paragraphs (b)-(d), infra) which Congress concluded called for sterner and more elaborate measures than those previously used."
b2) "Congress is well within its powers in focusing upon the geographic areas where substantial racial voting discrimination had occurred."
c1) "Congress, as against the reserved powers of the States, may use any rational means to effectuate the constitutional prohibition of racial voting discrimination."
c2) "The Fifteenth Amendment, which is self-executing, supersedes contrary exertions of state power, and its enforcement is not confined to judicial invalidation of racially discriminatory state statutes and procedures or to general legislative prohibitions against violations of the Amendment."
The 10th Amendment is meaningless usually, but especially in the face of the 15th Amendment even without Due Process arguments
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation
"Appropriate legislation" means the rational basis test, and you have to be completely blatantly composed entirely of crap to fail that test.
Except Scalia is all about how the Constitution is a static document. If the VRA was Constitutional in 1965, according to his paradigm it should be Constitutional now. Otherwise, its an outcome based approach that he supposedly abhors.
That's not strictly accurate - taken to its logical conclusion, that would mean that Scalia would never even consider overturning any previously upheld law. The "get out of jail" clause (as it were) is that the interpretation of the constitution has not changed, it was the original judgement that was in error - i.e. the constitution is hunky dory, it was those danged humans that screwed up.
Right, so Scalia would have to claim that one of the most important and popular pieces of legislation ever, that was upheld 8-1 in 1965 and that has been repeatedly upheld, was Unconstitutional the whole time.
Indeed, Scalia joined in decisions that explicitly said this. Lopez v Monterey County 1996, unanimous decision delivered by O'Connor
Recognizing that Congress has the constitutional authority to designate covered jurisdictions and to guard against changes that give rise to a discriminatory effect in those jurisdictions, we find no merit in the claim that Congress lacks Fifteenth Amendment authority to require federal approval before the implementation of a state law that may have just such an effect in a covered county. Section 5, as we interpret it today, burdens state law only to the extent that that law affects voting in jurisdictions properly designated for coverage. With respect to literacy tests, in fact, the Act already allows for the very action that the State claims would be unconstitutional here. At least until a 1970 amendment to the Act barring literacy tests nationwide, see 42 U.S.C. § 1973aa §4 had been used to ban these tests in covered jurisdictions even where the tests had been enacted by a noncovered State. See Gaston County v. United States, 395 U.S. 285, 287 (1969) (although State was not covered, "use of the State's literacy test within the county was . . . suspended" when the county was designated a covered jurisdiction). Moreover, under §4(b), a state-imposed literacy test may, as it did here, provide grounds for designating a county as a covered jurisdiction, notwithstanding the fact that the State as a whole is not covered.
... In short, the Voting Rights Act, by its nature, intrudes on state sovereignty. The Fifteenth Amendment permits this intrusion, however, and our holding today adds nothing of constitutional moment to the burdens that the Act imposes.
spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
edited February 2013
As a property owning white man, I for one welcome a return to the original principals this country was founded on. If the real estate foreclosures continue, soon I'll be the only person eligible to vote for an entire house seat
Ah, so Scalia has signed on to decisions explicitly granting Congress this authority under the fifteenth, rather than allowing it as an exception to state sovereignty (the justification for which could shift without the meaning of the Constitution changing).
Yeah, he can't possibly oppose it now, not logically.
I'll still maintain that even if the view of the Constitution is static, what is constitutional today can change tomorrow. Restrictions on individual liberties that meet strict scrutiny today may not forever, as the compelling interest can disappear or the implementation can become overbroad or underbroad.
But like I said before, I don't see that applying to the VRA. But as a general "constitutional forever" rebuttal.
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ChanusHarbinger of the Spicy Rooster ApocalypseThe Flames of a Thousand Collapsed StarsRegistered Userregular
Ah, so Scalia has signed on to decisions explicitly granting Congress this authority under the fifteenth, rather than allowing it as an exception to state sovereignty (the justification for which could shift without the meaning of the Constitution changing).
Yeah, he can't possibly oppose it now, not logically.
Unfortunately, this is Scalia we're talking about.
Nor does the Court have the power to re-write the legislation that way, to my way of understanding. And God knows Congress couldn't get an amended version passed.
enlightenedbum on
Self-righteousness is incompatible with coalition building.
Scalia himself is evidence that the five cons on the court don't care anything about such a thing as stare decisis. They'll make up any stupid reason in order to appease their corporate masters. They don't get those awesome "gifts" otherwise.
As a property owning white man, I for one welcome a return to the original principals this country was founded on. If the real estate foreclosures continue, soon I'll be the only person eligible to vote for an entire house seat
Oooh, a rotten Burrough system!
The sky was full of stars, every star an exploding ship. One of ours.
I think striking down section 5 could lead to an Obi Won moment for the GOP. Specifically for 2014 and definately for 2016. I still hope it doesn't come to that though, but recent shit like Citizens United is not ecnouraging from this court.
I would like some money because these are artisanal nuggets of wisdom philistine.
Could Equal Protection be used to attack the VRA? (I'm going go have a wash now)
the 15th amendment says no
And look this thing passed with 98 yes votes and a majority of southern reps voted yes too
So how the court is even considering this is beyond me, next they'll start deciding if freedom of speech really is constitutional (my guess: no it isn't, however for corporations it is)
Nor does the Court have the power to re-write the legislation that way, to my way of understanding. And God knows Congress couldn't get an amended version passed.
The court has the power to do anything it wants, they could declare that the VRA means congressmen have the right to sleep with new brides
I do think its bullshit Roberts who spent his entire pre supreme court justice career looking for ways to avoid enforcing the VRA gets to vote on it. I swear the right wing justices think that conflict of interest only applies to the liberals on the court.
I would like some money because these are artisanal nuggets of wisdom philistine.
It's entirely possible for the Court to overturn it and the executive to say "Cool, I'mma enforce it anyway because fuck you you're stupid."
With our current house it'd probably go to an impeachment trial but there's precendent (Andrew Jackson, the decision striking "under god" from the Pledge of Allegiance)
Oh man, Obama would become a legend. The lone president standing up against a racist court and congress to protect voting. He'd become a martyr if he were removed. No way the Republican party survives that.
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ChanusHarbinger of the Spicy Rooster ApocalypseThe Flames of a Thousand Collapsed StarsRegistered Userregular
Oh man, Obama would become a legend. The lone president standing up against a racist court and congress to protect voting. He'd become a martyr if he were removed. No way the Republican party survives that.
I think you underestimate the Right's response to something like that.
Could Equal Protection be used to attack the VRA? (I'm going go have a wash now)
And look this thing passed with 98 yes votes and a majority of southern reps voted yes too
So how the court is even considering this is beyond me, next they'll start deciding if freedom of speech really is constitutional (my guess: no it isn't, however for corporations it is)
They struck down the Stolen Valor Act last year, and that passed the Senate unanimously and was approved by the House with a voice vote.
It was also coincidentally a terrible law that should have been struck down at the very first opportunity, and was. The VRA of 1965 has been on the books for a good long while and has already come before the SCOTUS something like 10 times. Moreover, considering that it was only last year when the leader of Pennsylvania's state house boasted that proposed voter ID laws in that state were going to allow them to hand Mitt Romney the election, it seems pretty obvious to me that we are not yet in a golden age of post-racial attitudes where no one is going to game their election law to suppress minority turnout, and if anything we need broader preclearance. I'm just saying that "everyone in Congress thought it was a good idea!" isn't going to be a compelling argument against judicial review; they've had some really stupid ideas over the course of American history.
Stolen Valor was directly opposed to the first amendment, where as VRA is supported by the 15, apples to oranges sammy come on now don't go all Woodward on us.
I would like some money because these are artisanal nuggets of wisdom philistine.
Stolen Valor was directly opposed to the first amendment, where as VRA is supported by the 15, apples to oranges sammy come on now don't go all Woodward on us.
Like I said -- explicitly!!1 -- there are reasons this shouldn't even be up for review. The vote tally isn't one of them.
Could Equal Protection be used to attack the VRA? (I'm going go have a wash now)
the 15th amendment says no
And look this thing passed with 98 yes votes and a majority of southern reps voted yes too
So how the court is even considering this is beyond me, next they'll start deciding if freedom of speech really is constitutional (my guess: no it isn't, however for corporations it is)
Well since corporations consist of many people, we obviously have to give them more rights than individual people. You're not very good at politics, are you?
Could Equal Protection be used to attack the VRA? (I'm going go have a wash now)
the 15th amendment says no.
The 15th says congress can pass laws enforcing the right to vote, but can it do so by selectively imposing restriction on specific jurisdictions while exempting others?
Alternately, could residents of covered jurisdictions argue it is unconstitutional to restrict their political freedom based on the actions of other people (i.e. a past government of said jurisdiction)
For what it's worth, I hope the answer is no, but I learned a long time ago that what a law says, what I think a law says and what I hope a law says are usually quite different.
Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion.
The thing that gets overlooked because lol white persecution. Is that counties under these federal restrictions can get out of them IF they stopped passing discriminatory laws, but as was pointed out by Sotomayor the particular county of shelby recently got its nose smacked in 2008 because they tried to redistrict out the one black councilman.
So all this bullshit about how its unfair to hold blah blah responsible for past actions, unless your talking about 3 year olds Shelby county has earned its section 5.
I would like some money because these are artisanal nuggets of wisdom philistine.
spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
Scalia is an originalist. what this means is that he thinks the document needs to be read in its own time, with the meanings ascribed to the text as of that time. This is not an unreasonable approach to interpreting a historical document, but it makes it hard to run a modern country based on said historical document.
He is MUCH stronger on statutory interpretation, imo, where he looks to the four corners of the document and refuses to read legislative history on the theory that the legislature should write what they mean instead of doing terrible drafting like they always do. I agree with him 100% on this, and I defy anyone to not at least acknowledge the sense in this view after learning how legislative history is actually prepared.
Not to mention sticking to some kind of "Original meaning" is such bullshit. I mean originally written the constitution didn't allow women or minorities to vote. Hell the fucking thing originally had black people as 3/5's of a person, does Scalia long to return to that original meaning?
And I guarenfuckingtee the founders would have been appalled at Citizens united.
I would like some money because these are artisanal nuggets of wisdom philistine.
spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
I have never seen him abandon his approach to legislative interpretation. He is perhaps the leading expert on statutory interpretation in the US.
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HacksawJ. Duggan Esq.Wrestler at LawRegistered Userregular
edited March 2013
Scalia is terrible and his interpretations are dumb, and his belief in Originalism being the One True Way is fucking abhorrent. The court can't be rid of him too soon.
Yeah when Richard Posner a guy long thought to be destined to the supreme court under a republican president called Scalia full of shit you know the guy is full of shit. I mean look at his ACA ruling as completely off the rails.
I would like some money because these are artisanal nuggets of wisdom philistine.
HacksawJ. Duggan Esq.Wrestler at LawRegistered Userregular
No, look at his immigration ruling from last year. Dude knows his interpretations are largely going to fall on the wrong side of history and is being big fat whiny baby about it. We'll be richer for his departure.
The scary part about Scalia is that he's not on the losing side of 8-1 decisions, the other conserva judges look to him to write their shit. That's sad.
I would like some money because these are artisanal nuggets of wisdom philistine.
Not denying his writing ability, just the content of his messages which are horrible. I mean when he sides for DOMA you know that shit is going to be awful as fuck.
I would like some money because these are artisanal nuggets of wisdom philistine.
Not denying his writing ability, just the content of his messages which are horrible. I mean when he sides for DOMA you know that shit is going to be awful as fuck.
He'll probably just quote his dissent in Lawrence and say he told you so. And include a gay slur, just to troll harder.
Self-righteousness is incompatible with coalition building.
I mean even if I had a traumatic brain injury and thought like a conservative I wouldn't want the absolute dick that is Scalia writing anything with my name on it. I'd say more on Scalia but I don't want an infraction.
I would like some money because these are artisanal nuggets of wisdom philistine.
Posts
One of the dangers of Scalia's type of "Party First!" jurisprudence is that it has all sorts of unexpected downstream effects, because the law is based on logical arguments. Every time the Supreme Court twists itselfs into knots to justify something to benefit the GOP, it creates distorted precedents that lawyers can trot out to apply to all sorts of cases.
Section 5 of the Voting Rights Act specifies the states and counties who must gain approval from the federal government for any changes to voting laws.
The 10th amendment (broadly) states that any powers not explicitly delegated to the federal government in the constitution are considered to be held by the states.
The 15th amendment states that no citizen should be denied the right to vote based on race.
SCOTUS is considering the VRA in the context of:
a) Providing a piece of legislation that prevents end-runs around the 15th amendment (for example, the "Literacy Tests" that were the original catalysts of the VRA disenfranchising African American citizens).
b) That applies equitably (but not necessarily equally) to the various states and counties.
c) That does not restrict the states powers in a manner not enumerated by the constitution.
That's not strictly accurate - taken to its logical conclusion, that would mean that Scalia would never even consider overturning any previously upheld law. The "get out of jail" clause (as it were) is that the interpretation of the constitution has not changed, it was the original judgement that was in error - i.e. the constitution is hunky dory, it was those danged humans that screwed up.
a1) "A variety of methods was used thereafter to keep Negroes from voting, one of the principal means being through racially discriminatory application of voting tests."
a2) "Congress, whose power to enforce the Fifteenth Amendment has repeatedly been upheld in the past, is free to use whatever means are appropriate to carry out the objects of the Constitution."
b1) "The Act's voluminous legislative history discloses unremitting and ingenious defiance in certain parts of the country of the Fifteenth Amendment (see paragraphs (b)-(d), infra) which Congress concluded called for sterner and more elaborate measures than those previously used."
b2) "Congress is well within its powers in focusing upon the geographic areas where substantial racial voting discrimination had occurred."
c1) "Congress, as against the reserved powers of the States, may use any rational means to effectuate the constitutional prohibition of racial voting discrimination."
c2) "The Fifteenth Amendment, which is self-executing, supersedes contrary exertions of state power, and its enforcement is not confined to judicial invalidation of racially discriminatory state statutes and procedures or to general legislative prohibitions against violations of the Amendment."
The 10th Amendment is meaningless usually, but especially in the face of the 15th Amendment even without Due Process arguments
"Appropriate legislation" means the rational basis test, and you have to be completely blatantly composed entirely of crap to fail that test.
Right, so Scalia would have to claim that one of the most important and popular pieces of legislation ever, that was upheld 8-1 in 1965 and that has been repeatedly upheld, was Unconstitutional the whole time.
Indeed, Scalia joined in decisions that explicitly said this. Lopez v Monterey County 1996, unanimous decision delivered by O'Connor
QEDMF xbl: PantsB G+
Yeah, he can't possibly oppose it now, not logically.
I'll still maintain that even if the view of the Constitution is static, what is constitutional today can change tomorrow. Restrictions on individual liberties that meet strict scrutiny today may not forever, as the compelling interest can disappear or the implementation can become overbroad or underbroad.
But like I said before, I don't see that applying to the VRA. But as a general "constitutional forever" rebuttal.
Unfortunately, this is Scalia we're talking about.
- John Stuart Mill
Oooh, a rotten Burrough system!
pleasepaypreacher.net
the 15th amendment says no
And look this thing passed with 98 yes votes and a majority of southern reps voted yes too
So how the court is even considering this is beyond me, next they'll start deciding if freedom of speech really is constitutional (my guess: no it isn't, however for corporations it is)
The court has the power to do anything it wants, they could declare that the VRA means congressmen have the right to sleep with new brides
pleasepaypreacher.net
With our current house it'd probably go to an impeachment trial but there's precendent (Andrew Jackson, the decision striking "under god" from the Pledge of Allegiance)
I think you underestimate the Right's response to something like that.
They already suspect he's a secret Hitler.
They struck down the Stolen Valor Act last year, and that passed the Senate unanimously and was approved by the House with a voice vote.
It was also coincidentally a terrible law that should have been struck down at the very first opportunity, and was. The VRA of 1965 has been on the books for a good long while and has already come before the SCOTUS something like 10 times. Moreover, considering that it was only last year when the leader of Pennsylvania's state house boasted that proposed voter ID laws in that state were going to allow them to hand Mitt Romney the election, it seems pretty obvious to me that we are not yet in a golden age of post-racial attitudes where no one is going to game their election law to suppress minority turnout, and if anything we need broader preclearance. I'm just saying that "everyone in Congress thought it was a good idea!" isn't going to be a compelling argument against judicial review; they've had some really stupid ideas over the course of American history.
pleasepaypreacher.net
Like I said -- explicitly!!1 -- there are reasons this shouldn't even be up for review. The vote tally isn't one of them.
Isn't that hilarious?
Well since corporations consist of many people, we obviously have to give them more rights than individual people. You're not very good at politics, are you?
The 15th says congress can pass laws enforcing the right to vote, but can it do so by selectively imposing restriction on specific jurisdictions while exempting others?
Alternately, could residents of covered jurisdictions argue it is unconstitutional to restrict their political freedom based on the actions of other people (i.e. a past government of said jurisdiction)
For what it's worth, I hope the answer is no, but I learned a long time ago that what a law says, what I think a law says and what I hope a law says are usually quite different.
- John Stuart Mill
So all this bullshit about how its unfair to hold blah blah responsible for past actions, unless your talking about 3 year olds Shelby county has earned its section 5.
pleasepaypreacher.net
Maybe I'm missing something here, but doesn't the fact that the constitution has amendments disprove that?
pleasepaypreacher.net
He is MUCH stronger on statutory interpretation, imo, where he looks to the four corners of the document and refuses to read legislative history on the theory that the legislature should write what they mean instead of doing terrible drafting like they always do. I agree with him 100% on this, and I defy anyone to not at least acknowledge the sense in this view after learning how legislative history is actually prepared.
And I guarenfuckingtee the founders would have been appalled at Citizens united.
pleasepaypreacher.net
pleasepaypreacher.net
pleasepaypreacher.net
pleasepaypreacher.net
He'll probably just quote his dissent in Lawrence and say he told you so. And include a gay slur, just to troll harder.
pleasepaypreacher.net