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Self-Government, Race, and Rationality

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No criminal law opinions from the high court today.  There is only one argued criminal case left, Sekhar v. United States, a minor case on interpretation of the federal extortion statute.  Meanwhile, we have a landmark case on some issues of federalism that often creep into criminal law.

The people of the several states have a right to govern themselves and exercise all government powers that the Constitution neither takes away nor assigns to the federal government.  The amendments adopted after the Civil War provide protection against racial discrimination by state governments.  The decision of particular cases often involves surveying the boundary between these potentially conflicting rights.

The historic Voting Rights Act of 1965 adopted a drastic measure for a drastic problem.  The states, and some counties, that had the worst record of denying people the right to vote on the basis of race had to get preclearance from Washington for any change in their election practices, while the rest of the country could continue to make changes at will, subject only to challenge after the fact.  How long would the people of these particular jurisdictions be subject to such a reduction in their right of self-government?

Forty-eight years.  Nobody running the government in these areas today had anything to do with pre-1965 practices.  Discrimination remains a problem, to be sure, but it is no longer the kind of barrier is was then.  It is more diffuse, and the assumption that these particular places have discrimination problems so much worse than the rest of the country as to justify such a drastic differential in their right of self-government is no longer valid.

Early in his tenure, Attorney General Eric Holder called for an honest conversation about race.  Well, we have some honesty from the Supreme Court today in Shelby County v. Holder.  Is he going to applaud?  Very doubtfulNope.

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