Sunday, September 8, 2013

Head-Bang of the Month (Con Law Division)

A recent New York Times article talks about a new approach by voting-rights advocates after the Supreme Court struck down part of the Voting Rights Act. It seems that in another recent decision, Justice Scalia affirmed Congress's right to regulate Federal elections under Article I, Section 4 of the Constitution, known as the "elections clause." The article goes on to say:

The clause is much less well known than, say, the equal protection clause of the 14th Amendment, and yet Congress’s power under it, Justice Scalia wrote, “is paramount, and may be exercised at any time, and to any extent which [Congress] deems expedient.”

Now "a growing circle of legal scholars" is looking this decision,  which "may point the way to a new approach to protecting voting rights."

Huh? Much less well known? A new approach?

Guys, the Constitution is only a little over 4,000 words long, not counting the amendments. That's 16 double-spaced typed pages. It's the shortest constitution in the world. I am not a Supreme Court justice, nor even a constitutional lawyer, nor even a lawyer, but I knew about this clause, and even cited it in connection with voting rights.

How do we explain this? I suppose that laymen have an incorrect picture of what constitutional lawyers do. We think of them as sitting around reading the Constitution all day. Actually, they are probably sitting around reading Supreme Court decisions, and lower-court decisions, and journal articles about Supreme Court decisions and lower-court decisions. So they probably never think about parts of the Constitution that don't happen to be the subject of court cases.

But still....All I can say is, thank goodness for Justice Scalia. That's the first time I have ever written those words, and probably the last. Granted, he was (the most offensive) part of the majority that created the problem. But without him, who knows how long it could've taken "legal scholars" to come up with this idea?

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