So you Feds can’t touch us anymore, said the Attorney General of Texas in a federal court filing this week in response to the Justice Department’s move to bail Texas in to federal supervision under section 3 of the Voting Rights Act. Section IIC of the Texas filing is headed “Even If This Court Concludes That The 2011 (Redistricting) Plans Were The Product Of Intentional Racial Discrimination, This Case Does Not Present The Threat Of Pervasive, Flagrant, Widespread, and Rampant Constitutional Violations Needed To Justify Preclearance.”
Is Texas saying we can mess with voters all kinds of ways so long as as we keep it classy-looking and subtle?
After reading the filing twice, let me summarize: yes that is what Texas is saying. And when Texas leans on Justice Roberts’ opinion that any “departure from the fundamental principle of equal sovereignty” of the states, their interpretation is just as ahistorical and lacking in actual textual constitutional basis as the 5-4 Shelby opinion itself.
Abraham Lincoln, in his Cooper Union address, took up the issue of local vs. federal authority over slavery in the territories. Taking on the “popular sovereignty” ideology of his rival Stephen Douglas, Lincoln found that a majority of the Constitution’s framers clearly understood that “no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the federal territories.” He goes on to say that anyone who disagrees with the majority of the founders is welcome to their opinion, but not to distort facts by claiming the support of those founders. He then addressed “a few words to the Southern people….You consider yourselves a reasonable and a just people….Still, when you speak of us Republicans (1859 does not equal 2013, does it!) you do so only to denounce us as reptiles….you say you are conservative…while we are revolutionary, destructive, or something of the sort….(but) some of you are for reviving the foreign slave trade….some for the ‘gurreat pur-rinciple’ that ‘if one man would enslave another, no third man should object,’ fantastically called ‘Popular Sovereignty.'”
Think this has no echo in John Roberts’ campaign against the Voting Rights Act? Thirty years ago, Roberts’ Justice Department memos argued for “Popular Sovereignty” as a justification for limiting the Act. Two months ago he wrote of the supposed doctrine of “equal sovereignty.” Lincoln ridiculed that kind of assertion as unconstitutional on the eve of disunion. And the state of Texas is making their provocative assertions knowing full well, I think, the resonant historical context.