We Could Use A Man Like John Paul Stevens Again

Justice Stevens has an essay about Shelby County. And since Stevens was never the kind of Republican who’s been using various forms of illogic to render the Civil War amendments a nullity for more than a hundred years, he of course is sharply critical of his former Chief’s disgraceful opinion. Admittedly, it’s not a tough job; one can probably just note that Justice Ginsburg’s dissent is “largely unanswered” and drop the mic. On many of the crucial questions the dissent raises — how can the preclearance formula be obsolete given the bailout provision? What’s the justification for the radical revision of the “equal sovereignty of the states” doctrine that was defined in the controlling precedent? — the majority opinion has nothing to say. And it’s clear at this point that the majority has no good answers to these questions because there aren’t any good answers.

Still, Stevens does make an original contribution to the discussion, raising another obvious problem with the revival of neoconfederate theories of federalism in the Roberts opinion:

The Court’s heavy reliance on the importance of a “fundamental principle of equal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted “three fifths” of a state’s slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states.

The fact that this “slave bonus” created a basic inequality between the slave states and the free states has often been overlooked, as has its far-reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election since it then gave the southern states an extra nine or ten votes in the Electoral College, and Thomas Jefferson prevailed over John Adams by only eight electoral votes. Because of the slave bonus, Adams served only one term as president.

The slave bonus unfairly enhanced the power of the southern states in Congress throughout the period prior to the Civil War. It was after the war that Section 2 of the Fourteenth Amendment, passed in 1868, put an end to the slave bonus. When the Fifteenth Amendment was ratified in 1870 during the Grant administration, the size of the southern states’ congressional delegations was governed by the number of citizens eligible to vote. Since that number included blacks as well as whites, during Reconstruction those states were no longer overrepresented in either Congress or the Electoral College.

After reconstruction ended, however, the terrorist tactics of the Ku Klux Klan and other groups devoted to the cause of white supremacy effectively prevented any significant voting at all by African-Americans, thus replacing a pre-war three-fifths bonus with a post-Reconstruction bonus of 100 percent of the nonvoting African-Americans. Thus, for almost a century—until the VRA was enacted during President Johnson’s administration—the southern states’ representation in Congress was significantly larger than it should have been.

Both the underrepresentation of blacks and the overrepresentation of white supremacists in the South during that period contradict the notion that the “fundamental principle of equal sovereignty among the States” is a part of our unwritten Constitution.

While it’s not part of the written or unwritten Constitution, the “equal sovereignty of the states” doctrine does have the consistent central characteristic associated with neoconfederate constitutional theories: that is, the principle is good for cases will it will advance the already overrepresented interests of Southern whites only.