Tuesday, June 25, 2013

Fishkin - : The Way Forward After Shelby County

It is a strange federalism that is emerging on the Untied States Supreme Court.  It has themes but not coherence. The most dangerous is "states have rights too".  Underlying that is the idea that the fundamental sovereignty is that of the states, not the people.  One sees this in the preamble to the Constitution of the Confederate States of America:
We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America."
Below is a critique by Prof. Fishkin that I think has much merit. Partcularly impressive is his The Dignity of the States which recently appeared in the Yale Law Journal Online. - GWC

Balkinization: The Way Forward After <i>Shelby County</i>:
by Joseph Fishkin, University of Texas
I want to suggest in this post that while it’s correct that this distinction makes little immediate difference, in jurisprudential terms, striking Section 4 was in some ways more radical than striking Section 5. The Court’s approach to Section 4 represents a new departure in American federalism, one only hinted at in dicta in one previous case: a principle that the states’ “equal sovereignty” constrains Congress’ ability to treat one state differently from another. This principle is one that should not have survived Reconstruction. Its appearance in the federalism jurisprudence of 2013 does not augur anything good.
Although the Court would not put it this way, let’s be blunt. Today’s decision was a major victory for all those who have ever viewed federal civil rights laws as unfairly victimizing and singling out the white South. I say more about this in this recent essay about the principle of “equal sovereignty” that the Court endorsed today. I won’t repeat it all here. To fully understand what happened today, one needs to go back not only to the Nixon and Reagan era of backlash against civil rights laws (and the related revival of talk of “state sovereignty”), but also to a century or so before that.
It was the opponents of Reconstruction and the Reconstruction Amendments who first put forward the argument that the enforcement of black civil rights against the Southern states in particular was an affront to those states’ equal sovereignty. That is why I think that in jurisprudential terms, and in the long sweep of history, the choice to strike down Section 4 in particular, in part on “equal sovereignty” grounds, was not modest at all, but radical. As Justice Ginsburg says in dissent (p.30), going this route took considerable “hubris.”

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