After my posts on Shelby, a few weeks ago, I decided to see what the Volokh folks have had to say about that particular decision. Not a lot, it turns out. But here’s Jonathan Adler, explaining how he thinks left and right tend to view the issue differently. Seen from the right, the decision makes sense (although Adler does not endorse it explicitly):
From the Right’s perspective, the question is not whether some specific provision in the Constitution invalidates Section 4 of the VRA, but whether it is expressly authorized — whether it fits on one of these islands of federal power. The argument for the Shelby County majority is that the extraordinary nature of the federal authority exercised through the VRA (as authorized by the 15th Amendment) can only be justified by extraordinary conditions. This is because the 15th Amendment only authorizes Congress to “enforce” its protections through “appropriate legislation.” Therefore, Congress has to be careful about imposing limitations on states that are not constitutionally required. In the majority’s view, justifying limits on states in 2006 based on conduct from the 1960s and early 1970s fails this test — it does more than “enforce” the 15th Amendment’s guarantees, and therefore exceeds the scope of federal power. Although the majority never says so explicitly (perhaps intentionally), this imposes limits on the 15th Amendment’s enforcement power similar to those imposed Section 5 of the 14th Amendment. the enforcement power.
Let’s focus on this sentence: “The argument for the Shelby County majority is that the extraordinary nature of the federal authority exercised through the VRA (as authorized by the 15th Amendment) can only be justified [constitutionally] by extraordinary conditions.”
I think we need ‘constitutionally’ in there, for clarity. But consider what we can do once ‘extraordinary conditions’ has been pocketed as a thing that makes things constitutional. This is, for better or worse, an answer to my original question: what sort of ‘rational standard’ is operating in Shelby?
I wrote in my first post:
It seems like the Supremes are applying a very high, rational-basis-with-extra-bite standard. It’s not enough that Congress be exercising powers it is acknowledged to have in a way that might make possible sense. It has to be a ‘good’ law – effective and ‘right’? But they can’t possibly apply that standard of judicial review to everything Congress does. So what is the elevated standard they are holding Congress to, in this case, and what class of cases need to meet this elevated standard, not just the usual ‘pass an ineffective or counter-productive law if you want’ bog-standard rational-basis test?
Adler’s answer provides a way of saying that the Supremes aren’t applying such an awkwardly high standard now. But saying so, in this way, means conceding implicitly that they were applying it in earlier decisions, when they allowed sec. 4 to stand (and now, to the extent that Shelby explicitly says sec. 4 used to be ok.) Question: when should the Supreme Court let the legislature do something (let’s be frank about this) unconstitutional? Answer: when two conditions are met. 1) there is an ‘exceptional crisis’; and 2) the judges judge that the legislative response to the crisis is not just barely rational, in the usual dumb way, but actually the ‘right’, effective response.
There’s something a bit Schmittian about this line, looks to me. At any rate, it doesn’t seem to fit with Adler’s own view of what the view from the right looks like.
The Left generally sees a vast sea federal power limited by islands of protections for various rights. From that perspective, the relevant question is whether there is something in the Constitution (or its principles) that defeats federal legislation. Many on the Right start from a different premise: The Constitution authorizes islands of federal power in what is otherwise a sea of questions reserved to states or the people.
But if the Supremes, like Moses, can part that sea at need, in a time of crisis … ?
What would Adler say? I suspect he would say I’m ignoring how there is really is a balancing act here, hence more restraint. “The Reconstruction Amendments present different questions than the enumerated powers in Article I, Section 8.” Adler doesn’t fill this in – he says it’s not his area, which is fine – but it seems, if I understand him, a major concession to a standard view from the left, which Adler is saying is not the view from the right (so what’s it doing in this view from the right?) One standard way of construing so-called ‘living constitutionalism’ is: the Reconstruction Amendments amounted to a tacit refounding. The whole Constitution is kind of a new beast, in virtue of adding a few things on. If you are saying that the Reconstruction Amendments change the meaning of the enumerated powers …?
Well, I’ll leave it at that.