A Very Prescient Shelby County Dissent

As I’ve previously mentioned, Chief Justice Roberts’s assertion that there is a constitutional “equal sovereignty of the states” is a rehabilitation of the arguments made by the slave power in the antebellum period. Conveniently, the argument was also ably rebutted in 1857:

While the third is said to rest upon the equal right of all citizens to go with their property upon the public domain, and the inequality of a regulation which would admit the property of some and exclude the property of other citizens, and inasmuch as slaves are chiefly held by citizens of those particular States where slavery is established, it is insisted that a regulation excluding slavery from a Territory operates, practically, to make an unjust discrimination between citizens of different States in respect to their use and enjoyment of the territory of the United States.

With the weight of either of these considerations, when presented to Congress to influence its action, this court has no concern. One or the other may be justly entitled to guide or control the legislative judgment upon what is a needful regulation. The question here is whether they are sufficient to authorize this court to insert into this clause of the Constitution an exception of the exclusion or allowance of slavery not found therein nor in any other part of that instrument. To engraft on any instrument a substantive exception not found in it must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible — because judicial tribunals, as such, cannot decide upon political considerations.

—Dred Scott v. Sandford, Benjamin Curtis (dissenting)

The argument reintroduced into American constitutional law by John Roberts and his Republican brethren hasn’t improved since Roger Taney used it 1857. There was no constitutional “equal sovereignty of the states” then and there isn’t now. Creating extraconstitutional conditions on explicitly delegated federal powers to hold that civil rights legislation that the majority of the Court doesn’t like is unconstitutional didn’t make sense when it was used to qualify the congressional power to make “all needful regulations” concerning the territories, and it doesn’t make sense when used to qualify the powers to prevent vote discrimination given to Congress by the 15th Amendment.