James Blacksher and Lani Guinier have posted this draft on SSRN (forthcoming, Harvard Law and Policy Review). Here is the abstract:
The “equal sovereignty” principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that black Americans, slave or free, were not members of the sovereign people and could never be “citizens” within the meaning of the Constitution. Otherwise, he said, blacks would be entitled to all the fundamental rights of citizenship guaranteed by the Privileges and Immunities Clause of Article IV, Section 2, including the right to vote, a result that would violate the equal sovereignty of the slave states. Black people, Chief Justice Taney wrote, could only enjoy those rights the sovereign people of each state chose to give them.
The Dred Scott decision was one of the provocations that led to the Civil War and to the adoption of the Reconstruction amendments to the Constitution. Section 1 of the Fourteenth Amendment, ratified in 1868, overruled Dred Scott’s holding that freedmen and their descendants were not citizens, and it prohibited the states from abridging “the privileges or immunities of citizens of the United States.” Section 5 of the Fourteenth Amendment gave Congress the power to enforce the Privileges or Immunities Clause. But black voting rights were unpopular in the northern states, as well as in the South. Referendums on black suffrage had been defeated in many northern states in 1867, including Ohio, Kansas, and Minnesota. So the drafters of the Privileges or Immunities Clause had to concede, at least for the time being, that it did not guarantee the franchise. Instead, they placed in Section 2 of the Fourteenth Amendment a threat to reduce Congressional representation for states who denied the franchise to any of its “male inhabitants.” The Reconstruction Republicans forced the former Confederate states, still under military rule, to enfranchise blacks as a condition for being readmitted to Congress. Then in 1870 they adopted the Fifteenth Amendment, which prohibited denying or abridging the right to vote on account of race. The door was left open, however, for a future Congress to give the Privileges or Immunities Clause its plain meaning by enforcing the right to vote of every American citizen.
The Supreme Court moved immediately to close the door to such future Congressional action by judicially neutering the Privileges or Immunities Clause. The 1873 Slaughter-House Cases reaffirmed Dred Scott’s holding that power to define the fundamental rights of citizenship belonged to the states, not to the federal government. A year later, in Minor v. Happersett, the Court rejected the claim of women suffragists that the Fourteenth Amendment Privileges or Immunities Clause guaranteed them the franchise. The Constitution does not give anyone the right to vote, the Court said.
The former slave states wasted little time taking the Court’s cue. By the turn of the century they had disfranchised their black citizens and had openly established regimes of white supremacy that racially segregated nearly all aspects of life in the South, without fear of penalty by a Congress engaged in reconciling whites North and South. In a 1903 opinion written by Justice Oliver Wendell Holmes, the Supreme Court told blacks in Alabama the federal courts were powerless to restore their right to vote.
African Americans remained disfranchised in the South until, through generations of bloody sacrifice, they finally got Congress to use its power to enforce the anti-discrimination provision of the Fifteenth Amendment and pass the Voting Rights Act of 1965. At first the Supreme Court upheld Congress’ authority to enact and to re-enact the Voting Rights Act, but eventually it began to push back. Now, in Shelby County, a five-four majority has struck down the coverage formula in the 2006 amendments to the Voting Rights Act, relieving the Southern states from having to obtain federal preclearance before implementing changes in their voting practices. But, by invoking the unwritten doctrine of “equal sovereignty,” Chief Justice John Roberts’ opinion for the Court forces us to revisit the racially discriminatory origins of that doctrine and its role in undermining the Privileges or Immunities Clause.
The authors argue that the appropriate response by Congress to Shelby County would be reasserting its explicit constitutional authority to interpret the Privileges or Immunities Clause. Adoption of the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments and the Court’s repeated acknowledgment of a constitutional right to vote have effectively overruled the Slaughter-House Cases and Minor v. Happersett. The American people of the twenty-first century should demand that Congress enact statutes expressly proclaiming what no one today can deny, that the right to vote is the paramount privilege or immunity of citizenship in the United States. Congress should exercise its Fourteenth Amendment power to enforce the Privileges or Immunities Clause and begin establishing uniform national standards for the administration of all elections, federal, state, and local, that guarantee full access to the franchise for all American citizens.
The 2006 Voting Rights Act had special constitutional stature; it was the first voting rights law in American history passed with the participation of African-American members of Congress from every one of the former Confederate states. Its re-enactment based on Congressional authority to enforce the right to vote under the Privileges or Immunities Clause, rather than on the anti-discrimination provisions of the Equal Protection Clause and the Fifteenth Amendment, would render irrelevant the Supreme Court’s call for comparing the states’ current records of voting discrimination. It would emphatically repudiate the racially tainted equal sovereignty principle relied on in Shelby County and finally renounce the legacy of Dred Scott by proclaiming African-American citizens’ full membership in the sovereign people of the United States.