Hypocrisy on the high court: ‘Textualists’ and the Tenth Amendment

Chief Justice John Roberts’s majority decision in Shelby County v. Holder (2013) eviscerated a crucial provision of the landmark Voting Rights Act of 1965 that required pre-clearance by the federal Department of Justice for changes in voting in state and local governmental units which had a pattern of past discrimination. The decision flew in the face of the Court’s precedents. Its laissez faire attitude has triggered huge efforts to suppress the vote and a flood of subsequent litigation.

As Justice Ruth Bader Ginsburg pithily suggested in her already-famous dissent in the case, putting aside an umbrella that has kept you dry during a rainstorm will leave you drenched when the storm returns. Though the Court ignored its own frequent celebration of the right to vote as “a fundamental right,” it’s more dramatic offense was its clear failure actually to pay attention to the very constitutional text upon which it relied.

Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas, and Alito, declared that while the Voting Rights Act once had been necessary, it was no longer needed and was therefore unconstitutional because it placed too much of a burden on the states. In failing to accept  Congress’s regular renewal of the Voting Rights Act by overwhelming majorities, the Court majority described Congress’s actions as a failure to keep up with the times. This novel constitutional doctrine ignored the Court’s repeated refrain — particularly from “textualist” or “originalist” judges — that they had to honor Congress and its laws as written to avoid  imposing their own values as would “activist judges.”

The core of the states’ rights argument in the Shelby County case was the Court’s reliance on the Tenth Amendment, which the Chief Justice cited as follows:

“Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10.”

However, this is the actual text of the Tenth Amendment:        

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This little-noticed departure from the text is striking in itself, and almost surely not the product of bad law clerks. Yet it becomes startling when one considers, for example, the current legal imbroglio about the possibility of crucial constitutional differences between “the people” and “citizens,” specifically who gets counted for the census, as well as and in other important contexts. By limiting federal powers only to those powers “specifically granted,” Roberts’ s Tenth Amendment embraces what was a losing position that was repeatedly rejected at the Constitutional Convention and by the First Congress, the actual drafters of the Tenth Amendment.

In fact, James Madison — often regarded as the leading Framer of the Constitution — three times led successful efforts to defeat just such a limitation on federal powers. In the earlier Articles of Confederation, Article II had included just such an explicit restriction on federal powers, limiting them only to powers “expressly granted.” That limitation had not worked well, to put it mildly, and this failure led directly to the Constitutional Convention in 1787, convened largely because there had been inadequate federal authority to respond to the increasingly bitter rivalries among the states.

So why would the Shelby County paraphrase of the Tenth Amendment depart in two major ways from the actual Tenth Amendment’s text?

Why replace “people” with “citizens,” and why insert a specific limitation on federal power? Putting aside sloppiness as a possible but unlikely explanation, these changes probably mark an effort to plant a doctrinal time bomb for future use. Later decisions could rely on citations to Shelby County, thereby eliding what the Tenth Amendment actually says.

Such judicial activism is illustrative of a long tradition, not least among self-proclaimed textualists, to read the text of the Constitution as you would like it to be, rather than as it is written.

Aviam Soifer served 17 years as Dean of the William S. Richardson School of Law at the University of Hawai’i. He has been writing and teaching about constitutional law and legal history for over 40 years, often focusing on the post-Civil War period.