Abstract
Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder
Highlights
James Blacksher & Lani Guinier, Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v
Shelby County is the first decision since Dred Scott to invoke the doctrine of equal sovereignty where the right to vote was involved
Once again, just as the Court did in Dred Scott, the Court in Shelby County held that the “equal sovereignty” of the State of Alabama takes precedence over Congress’s exercise of its explicit constitutional power to enforce the voting rights of the descendants of slaves
Summary
.”82 Section 1 clearly overruled the holding in Dred Scott that persons of African descent could never be citizens of the United States, and it gave Congress the power to enforce the privileges and immunities of national citizenship.[83] But it left unresolved the longstanding antebellum question of exactly what rights would be considered privileges and immunities of U.S citizens. The Republican-controlled 1867 Congress, by its Section 2 compromise, was forced to agree with the defensive anti-slavery interpretation of privileges and immunities that Justice Curtis had adopted in his Dred Scott dissent, which did not include the right to vote. Samuel Shellabarger, explained that the Fourteenth Amendment Privileges or Immunities Clause “was designed ‘to enforce’ the Comity Clause [Article IV Privileges and Immunities Clause], ‘and aims at nothing beyond.’ ” 84 But, since it was not defined in the text of the Amendment, this left the new Privileges or Immunities Clause open to a different interpretation by a future Congress, “and Southerners in particular still worried about the inclusion of political rights.”[85]
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