Dissent, Shelby vs Holder, Associate Justice Ruth Bader Ginsburg paves the way for Judicial Recall on Shelby vs Holder

II Dissent, Shelby vs Holder, Associate Justice Ruth Bader Ginsburg paves the way for Judicial Recall on Shelby vs Holder

In answering this question, the Court does not write on a clean slate. It is well established that Congress’ judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.

The basis for this deference is firmly rooted in both constitutional text and precedent. The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.”[2] In choosing this language, the 2637*2637 Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819) (emphasis added).

It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments. Nowhere in today’s opinion, or in Northwest Austin,[3] is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. Notably, “the Founders’ first successful amendment told Congress that it could `make no law’ over a certain domain”; in contrast, the Civil War Amendments used “language [that] authorized transformative new federal statutes to uproot all vestiges of unfreedom and inequality” and provided “sweeping enforcement powers … to enact `appropriate’ legislation targeting state abuses.” A. Amar, America’s Constitution: A Biography 361, 363, 399 (2005). See also McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L.Rev. 153, 182 (1997) (quoting Civil War-era framer that “the remedy for the violation of the fourteenth and fifteenth amendments was expressly not left to the courts. The remedy was legislative.”).

It is this decision,in which is probably beyond this courts Authority to strike, passed by Congress in a remarkable show of unanimity, that helped to bring about a Donald Trump Presidency, and it is demonstratable that elections law changes previously forbidden are now taking place. These need to be made into findings of fact.

Foot note

It is unlikely that Donald Trump could have beaten Hillary Clinton, whatever her flaws without the chaos in the election system unleashed by this 5-4 decision, with Scalia the vote that let this happened, and another 2 or possibly 3 Justices. It is also clear he is not picking except from a very short list.

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