Balkinization  

Sunday, October 16, 2016

On "Clamping Down on Religious Dissent"

Mark Tushnet

Old fogey that I am, I read Ross Douthat's column today in hard copy, so I didn't know, until someone told me, that his sentence referring to "liberal legal minds" entertaining the idea of clamping down on religious dissent was linked to my now apparently notorious blog post. (In addition, I was informed today that I play the role of the Devil in an amicus brief filed in the Washington Supreme Court as well.) So, some comments:

1. My views have always been eccentric, to put it mildly, so to find myself as one of an unnumbered group of "liberal legal minds" (in the plural) is disconcerting. So is the portrayal of me as some sort of field commander for liberal legal strategy. But, of course, would that I were! That is, because I think my views are correct, I think that others should share them (even if they don't -- yet).

2. Obviously Douthat is offering what rhetoricians call a persuasive definition of "religious dissent." Nothing I've written suggests that I think that people on my side of the political spectrum should stop religious conservatives from denouncing Obergefell or statutes enacting marriage equality, or from arguing in favor of interpretations of existing civil rights laws to require accommodations of some (many? all?) religiously motivated conduct otherwise inconsistent with those laws. That doesn't mean, though, that I think such arguments are good ones, which, in turn, means that arguing that no (or few) accommodations should be interpolated into the statutes is not the same as arguing for "clamping down on religious dissent."

3. On the merits, I think it's interesting that religious (and other social) conservatives are now trying to get liberals to make anticipatory gestures of reconciliation after what they seem to assume to be the liberal victory. So, they seem to agree with me that "we won, they lost." But, if that's so, it's not clear to me why the gestures of reconciliation should initially come from us rather from them. I've suggested, for example, that a good first move for people like Douthat would be to come out strongly in favor of the adoption (in states where they do not yet exist) of statutes expanding civil rights protections to gender-identity classifications, coupled with advocacy for well-crafted accommodations (for owner-operated small businesses, for example). Or, to take another example, dropping flat opposition to the enactment of the federal ENDA statute would be a nice gesture of reconciliation on the part of religious conservatives, after which we could have a discussion of well-crafted accommodations. (And, where gender-identity categories are already protected by state civil rights laws, as is apparently true in Washington state, religious conservatives might advocate for the legislative adoption of well-crafted accommodations rather than seeking to interpolate a broad accommodation into the existing statutes.)

I know that some -- not all -- on my side of the spectrum are quite hostile to any accommodations in this context at all, but, for myself, I wouldn't expect that political discussions and negotiations over an appropriate package of compromises (weighted, of course, toward my side, because, after all, we did win) would inevitably end with no accommodations. For liberals to give up on the accommodation issue at the outset (to avoid being charged with trying to clamp down on religious dissent) is to bargain with ourselves. My colleagues who study negotiation seem to think that's not the way to go -- and so making "bargain with yourselves" a precondition for reconciliation seems not the way to go.

Comments:

The first bullet point here has bite -- your comments have been particularly strong (imho, tad too strong, and I'm something of a fellow traveler) but some are making as if they are median. The rest sounds fair on a hard realistic level. An honest accounting, I think, would have the other side admit much of same if things reversed.

To answer the op-ed. The proof is in the pudding as to "serious" religious conservatives. There has been a strong dissent, but how much of one really? Trump only received a plurality to begin with. So, only a fraction would be involved.

As to a right to fear, Clinton does not "support abortion at every state of pregnancy" except for special exceptions that even religious conservatives often are willing to accept. So, he has the usual hyperbole. Also, I would think various aspects of Trump also should upset religious conservatives. And, just how far HRC herself will "clamp down dissent" ("dissent" is a telling word) as discussed is also worthy of pushback. Sure HRC will on policy grounds will do things conservatives disagree with. Thus, the deal with the devil, so to speak.

And, yes, I do think the religious right is divided to some respect. I respect various aspects of it though disagree with them on the merits in various ways. But, the society of the faithful should be put to a higher test. They repeatedly are willing to accept the burden. And, yes, I think too many failed it here in respect to the religious right.
 

I find it pretty hard to sympathize with the claim that the rule of Smith, written by Scalia and defended by conservatives such as Marci Hamilton, now constitutes "suppression of dissent".
 

Marci Hamilton is a bit of an outlier. She's rather strong. See, e.g., her essays at Verdict. Religious conservatives never liked Smith. I also am a tad disdainful of Scalia himself. One concern of his there was the ability of judges to weigh what amounts to policy choices. Sounded to me a structural constitutional concern. But, other than Boerne, when did he stay consistent post-RFRA?
 

"As to a right to fear, Clinton does not "support abortion at every state of pregnancy" except for special exceptions that even religious conservatives often are willing to accept."

In this case, how it is determined that the exception is present is doing all the work. Thanks to Doe v Bolton, if a doctor decides an abortion is 'medically necessary', that determination can't be reviewed or challenged. Deciding that an abortion is 'medically necessary' is about the only thing a doctor can do where that's the case.

As a result, not wanting to give birth can be a mental health issue requiring a late term abortion. Really, really wanting the abortion is reason enough...
 

In this case, how it is determined that the exception is present is doing all the work. Thanks to Doe v Bolton, if a doctor decides an abortion is 'medically necessary', that determination can't be reviewed or challenged.

Sure it can. The proper agency to conduct that review is the state medical board.
 

I also am a tad disdainful of Scalia himself.

I yield to no one in my disdain for Scalia. :) However, sometimes he wrote correct opinions (e.g., 6th A cases), and Smith was, in my view now, correctly decided.*

*At the time I opposed it. It was, ironically, Marci Hamilton who convinced me that it was correct.
 

It's always good to remind people that the substantive due process right in Griswold (which gave birth to Roe) was built on the Meyer and Pierce decisions handed down by one of, if not the most conservative Courts in our history. Once you get Meyers recognized right 'to marry, establish a home and bring up children,' that logically entails the freedom to not have children.
 

Mr. W's parenthetical on Griswold "(which gave birth to Roe)" seems an inadvertent choice of words.
 

If what is claimed as "religious dissent" discriminates against race, sex, etc, why should the former prevail over the latter?
 

Yeah, that word choice was intentional.

I've always thought a good compromise is one we already worked out in other areas-commercial enterprises, public accommodations, no discrimination, private non commercial organizations, knock yourself out, bigots! That respects people's right to make a living as an employer and consumer with associational rights.
 

I think Oregon v. Smith was a bad case to decide to question -- it could have been narrowly decided as a benefit case. But, it is not some form of the rule that I'm saying is an issue. It is that Scalia wasn't consistent later on. Cf. Hamilton, who strongly criticized later cases (she argued Boerne btw). And, sure, credit where credit is due. In other cases, however, he was more consistent.

Mark Field and Mr. W. are both correct. Doe v. Bolton did not invent the medical exception rule, which was in place generally nation-wide pre-Roe. Some states had a strict "life exception" rule, but even there, it would apply to later abortions. Pre-Roe, yes, it was often applied in a more arbitrary fashion depending on various questionable factors, including money, race, who ran the local hospital etc.
 

Your views are not eccentric, they are standard fare academic progressivism. You are just more openly honest in your call to use the judiciary as a super-legislature to rewrite both statute and the Constitution by decree.

However, your Balkinization post was rather ungracious to Justice Kennedy, who has redefined by decree a basic foundation of society - marriage - with even more ephemeral legal reasoning than the infamous Roe penumbras.

"Clamping down on religious dissent" is a generous phrasing. Crushing religious freedom is more accurate. First, the judiciary redefines the marriage recognized by all faiths and all civil societies (acknowledging some exceptions made for polygamy) for about three millennia. Now, proponents of this change seek to abuse anti-discrimination law to put out of business any firm who does not affirmatively support the court's new definition of marriage.

Instead of seeking accommodations under this judicially decreed regime, the faithful may want to consider a more radical libertarian approach of getting government entirely out of the business of defining marriage by eliminating the institution of civil marriage.


 

SPAM I AM!'s "radical libertarian" approach might be more libertine than libertarian. As to SPAM I AM!'s stress of "the faithful," consider how "faithful" the Evangelicals were in dumping the Cruz Canadacy for The Donald (three marriages, two divorces, sexism, etc) as Revengelicals (alternatively Avengelicals). Some efforts of religious dissent are sort of the new Jim Crow and may lean towards establishment. Perhaps SPAM I AM! could list the ways his religious freedom is being crushed. SPAM I AM! continues with his perverse views of blaming progressivism for depriving Americans of the 19th century The Gilded Age that in his view were America's best days.
 

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I'm not impressed by arguments invoking millennia. Slavery, coverture, the legal disabilities of illegitimate children, all existed for millennia before courts and legislatures recognized they were imcompatible with our values. Once a fundamental right to marry is recognized the question then becomes can couples be denied the right based on their gender composition alone.

And where is there abuse of antidiscrimination laws? They either protect people based on sexual orientation or marital status or they don't. Some religious conservatives just want their cake (religious and marital protections applied to hetero couples only) and to eat it too (ignore other protections or applications of the law).
 

openly honest in your call to use the judiciary as a super-legislature to rewrite both statute and the Constitution by decree.

When all you have is a hammer, everything looks like a nail, which is why Bart should never do windows. If you actually read Mark's post it talks first and foremost of advocating courts reverse SCOTUS precedent. Two of the three examples of precedents he wants reversed were themselves opinions rewriting statutes/policies.
 

Mr. W:

In that post, Mark supports judicial decrees to rewrite the EPC to instead read the equal outcomes clause and to further expand the judicial legal fiction of a "constitutional right" to abortion.
 

It's been some time since I read "Bonfire of the Vanities" but I've been thinking about the ending as The Donald and his ilk claim that the election is rigged and what the consequences of a Trump loss might result in.
 

He talks about overruling three cases, two of which Shelby and Bakke involved judicial overruling of statutes/policies.
 

Mr. W:

Under our constitutional republic, statutes and policies are supposed to be subordinate and give way to the Constitution.

Mark wants the next progressive justice to rewrite the Constitution to rubber stamp these statutes and policies.
 

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A reminder to textualist SPAM I AM! that the Constitution does not make specific provision for judicial supremacy horizontally over the federal elective branches.

By the Bybee [expletives deleted] Sam-I-am (aka Joe) is not to be confused with SPAM I AM! While the former is challenging Hawaiian cuisine, the latter is challenging everything post the 19th century's The Gilded Age (and seems to be shifting his support to the Gilded One).
 

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."

What do you take the judicial power to be, Shag, if not the power to decide legal matters?
 

Shag: seems to be shifting his support to the Gilded One

To which Gilded One do you refer?

Both Trump and the Clintons are part of the evil 1%, Trump in large measure by paying off politicians and the Clintons entirely by being paid off.
 

This comment has been removed by the author.
 

"Mark wants the next progressive justice to rewrite the Constitution to rubber stamp these statutes and policies."

This is just "Bart thinks they're wrong" a we all know.
 

Brett,

As a literal matter judicial review is not in that text. One difficulty with the view is why the enumeration of all the specific subjects heard if the first part is read the way you're proposing?
 

Brett appears to miss the narrow scope of Shag's comment. He said this:

the Constitution does not make specific provision for judicial supremacy horizontally over the federal elective branches

There was some dissent there originally and some still question at least the scope (putting aside specific cases) today. Jefferson was a prime case, arguing "all the departments co-equal and co-sovereign within themselves." Another was a state judge:

https://conservancy.umn.edu/bitstream/handle/11299/164813/04_01_Clinton.pdf

The Supreme Court under that rubric would decide quite a few legal questions, including statutory interpretation and determining if state law violated the federal Constitution.
 

Mr. W: This is just "Bart thinks they're wrong"

My advantage as an original meaning textualist in our conversations is that I can always point to the black and white text of the law to back my positions.

You are welcome to identify the provisions of the Constitution which grant government at any level the power to discriminate on the basis of race, Congress the power to direct state elections or permit anti-discrimination lawsuits without evidence of discrimination, or where the Constitution grants mothers (but not fathers) the right to kill off their children in utero.
 

"Congress the power to direct state elections"

Er, for starters, Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Interestingly, 'equal dignitude of the states,' used to strike in Shelby is NOT anywhere in the text...


 

"identify the provisions of the Constitution which grant government at any level the power to discriminate on the basis of race"

And the dishonesty of this phrasing. The Constitution is the federal one, not the state one, and with very limited and specific exceptions is not about grants of power to state and local government.
 

BD: You are welcome to identify the provisions of the Constitution which grant...Congress the power to direct state elections... without evidence of discrimination.

Mr. W: Er, for starters, Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.


Which part of "without evidence of discrimination" did you not understand?

Interestingly, 'equal dignitude of the states,' used to strike in Shelby is NOT anywhere in the text.

I completely agree. The better approach would have been that any Congressional direction of state elections permitted under the 14A be applied equally to all the states so the all the people enjoy equal protection of the law.

BD: "identify the provisions of the Constitution which grant government at any level the power to discriminate on the basis of race"

Mr. W: And the dishonesty of this phrasing. The Constitution is the federal one, not the state one, and with very limited and specific exceptions is not about grants of power to state and local government.


Are you really making this argument in the very next post after citing the 14A?
 

"Which part of "without evidence of discrimination" did you not understand?"

Shelby County had a long history of discrimination backed by evidence. Were it a person, it wouldn't be allowed to vote in some places for it's offenses!

"any Congressional direction of state elections permitted under the 14A be applied equally to all the states"

But that's silly, not all states are engaged in the same practices. That was the entire point of the 14th and 15th!

"Are you really making this argument in the very next post after citing the 14A?"

Yes, because the 14th is a restriction, and you phrased your question as one of grant.

 

Mr. W:

There is no evidence that Shelby County (or any of the other states singled out by the VRA) imposed laws which denied or abridged the right of any citizen to vote on account of race, color or previous condition of servitude for decades.

In any case, the prior history of individual states should not even be part of the constitutional calculus. Sec 5 of the 14A grants Congress the power to enact laws enforcing the right guaranteed by Sec 1 of the 14A. All citizens of the United States equally enjoy the protection of Sec 1 and thus any law enacted by Congress pursuant to Sec 5 should apply to all the states equally. Congress should have enacted a statute detailing which state election proctices were illegal under Sec. 1 and granted the Justice Department as well as affected citizens the power to sue states to obtain an injunction against such practices.

The political reality was that no state wanted the Justice Department overseeing their elections and the VRA could only pass if it unconstitutionally imposed federal oversight on a minority of states.
 

Amazing. So the law can treat felons differently based on their wrong doing, but not states based upon theirs?
 

The entire impetus for the 14th and 15th was some but not all states were being egregious in their denial of rights.
 

I think the evidence of discrimination point is key myself and found those who focused on the absence of some "equal dignitude" unnecessarily making it harder on themselves. As Justice Breyer noted recently, some form of "equally dignified States" principle has long been recognized in various contexts. A book on the Insular Cases, e.g., dicussed how the principle went back to the Marshall Court.

https://scholar.google.com/scholar_case?case=6017589557123929669&hl=en&as_sdt=6&as_vis=1&oi=scholarr

The ultimate dividing line for me in Shelby was the rational basis of the preclearance regime as shown by in depth fact-finding by Congress that was reasonable enough to at least give it the benefit of the doubt. As noted, the 14th and 15th Amendments especially in this context was passed recognizing federal power would not be applied exactly the same given the facts on the ground. The law here was "appropriate" as a whole, including the opt out process.

To somewhat tie this to the subject of the post, note how one concern in the Boerne v. Flores case was overreaching in federal legislation over state laws, there in respect to RFRA.
 

Mr. W: Amazing. So the law can treat felons differently based on their wrong doing, but not states based upon theirs?

Poor analogy.

Rights are enjoyed by individuals, who can waive various rights by criminal malfeasance.

The fact some states have not yet violated the Sec 1 of the 14A does not mean Congress may deny their individual citizens protections of the laws Congress enacts to enforce Sec 1.
 


Because some states have more history in denying voting rights based on race, and because some states have no such history, the former's actions get more scrutiny. The entire reason the 15th was passed was because some but not all states were involved in the activity it was meant to address. To nullify an act authorized by it bc it targets some but not all states is ludicrous
 

Remember the Robert's court agreed with precedent saying some state's deserved more scrutiny based on their past history of transgressions. None took the lunatic, history denying position you're taking. The Robert's majority argued that so much time had passed that such a position was now less tenable vis a vis the 'equal dignitude of the states.' That's a judicial arbogration of a more properly legislative determination coupled with a completely ahistorical and non textual fiction.
 

To argue the same Congress that put forward the 15th didn't want states dealt with differently is absurd, that Congress was actively supporting the military occupation of some states, refusing to seat representation from some states, etc. The 15th itself was proposed and passed entirely to address the incorrigibility of some, but not all, states on this matter. To argue that legislation passed under it is not 'appropriate' because it subjects some states to more scrutiny is ahistorical absurdity.
 

-I wonder if the Shelby 5 took post-decision "judicial notice" of the immediate steps taken by many former slave states reinstalling voting limitations following the decision. It's like a bank robber being pardoned and then robbing the same bank. Recall the "redemption" of the former slave states to revert to the Union followed by the birth of Jim Crow to thwart Reconstruction.
 

"The Robert's majority argued that so much time had passed that such a position was now less tenable vis a vis the 'equal dignitude of the states.'"

I believe the Roberts majority argued that states could reasonably be subject to special scrutiny based on their behavior, but it had to be *recent* behavior, not their behavior a generation or more ago. Congress had the opportunity to update the list, you know. They doubled down on a list based on wrongs that happened before most people now living were born.
 

For "reinstalling voting limitations following the decision" read, "enacting laws any other state was entitled to enact, and often did."

The basic issue here is that, though pre-clearance was intended to keep the covered states from spamming the system with laws of the sort that it would be unconstitutional for ANY state to enact, in practice the federal government was refusing to pre-clear laws of the sort that uncovered states were still free to enact, and did, because they WEREN'T constitutionally objectionable.

It wasn't being used to stop them from doing wrong, but to stop them from doing things they were legally entitled to do. And that was never the purpose of Section Five. It was a perversion of it.
 

had to be *recent* behavior

The dissent explained how Congress used "recent behavior" to show the continual reasonableness of the coverage formula.

Not that I quite see this "recent behavior" test exactly in the Constitution itself. I see the 15th Amendment giving "Congress" plenary power to pass appropriate legislation, the text trusting Congress (with each state represented, two senators each) with the presidential veto with special authority. But, I'll grant it.

There is also a "bail-out" mechanism for the covered areas to show how current practice makes application inappropriate per "recent behavior." Per the dissent: "Congress designed the VRA to be a dynamic statute, capable of adjusting to changing conditions."

The dissent involved the four liberal justices but they were for upholding a recently passed bipartisan bill signed into law by a Republican President. The majority wanted to deny the elected people's representatives the power to carry out the law here. It was not appropriately applied there.

 

They doubled down on a list based on wrongs that happened before most people now living were born.

Those 45 and over in 2000 made up of 35% of the population.

https://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf

As shown by the lengthy fact-finding, the problems lingered on long beyond the time these people and even their children were born. Here though, you are okay with unelected judges overriding the judgment of elected officials, even when the Constitution here expressly gives special power to them.

It wasn't being used to stop them from doing wrong, but to stop them from doing things they were legally entitled to do.

The judgment of what was and is necessary might be best looked at from those who don't think the wrongs are some distant memory when even the original Voting Rights Act was passed while Brett himself was alive. There is also the concern for self-interest here. The alleged "bank robber" here is claiming innocence.

Anyway, as usual, conservatives support governmental power, including the power of the judicial courts to strike down co-equal branch legislation, in certain cases while disagreeing in others. Devil is in the details.
 

"but it had to be *recent* behavior, not their behavior a generation or more ago"

I think Joe answers this, but I'd add: this is certainly something for Congress to work out, how 'recent' is appropriate to trigger scrutiny. Especially since the affected states were represented in Congress and made nary an objection there.
 

"The alleged "bank robber" here is claiming innocence. "

Well said! Brett says in many instances, well because of last performance they've (gun control proponents, GOP establishment, etc) lost the benefit of the doubt. But Southern states with historically relatively recent histories, they deserve the benefit of the doubt!
Either way, a Court taking this judgement away from Congress and to itself can hardly then deny the mantle of activist.

 

Mr. W: Because some states have more history in denying voting rights based on race, and because some states have no such history, the former's actions get more scrutiny.

Agreed.

The protection of the 14A should extend to all. Those states with a history of racial discrimination should get additional scrutiny in the application of the 14A.

To argue the same Congress that put forward the 15th didn't want states dealt with differently is absurd...

The Radical Republican Congress had no sympathy for the defeated Confederate states. However, by their own words, the Civil War amendments apply equally to the citizens of all states, not just the former slave states.
 

That's ridiculous. If, for example Congress responded to KKK intimidation at the polls in Southern states by providing troops to guard the polls it wouldn't have to send troops to Wisconsin too.
 

It's especially odd to point to the text of the 14th to argue that 'appropriate' legislation to enforce it couldn't focus differently in different states because the text of the 14tg itself includes an explicit, specific enforcement provision that would apply to specific, problematic states only (the Cingressionsl seating reduction part).
 

If "states with a history of racial discrimination should get additional scrutiny in the application of the 14A," I'm not exactly sure the point of disagreement here except for the facts (e.g., current need regarding certain state practices or what specific means -- such as affirmative action -- are appropriate).


 

Mr. W: That's ridiculous. If, for example Congress responded to KKK intimidation at the polls in Southern states by providing troops to guard the polls it wouldn't have to send troops to Wisconsin too.

Congress does not command the Army. However, if Congress were to outlaw Democrat terrorist organizations, the President is likely to send the Army to KKK strongholds.
 

Today's remnants of the KKK are backing the Republican presidential nominee, as they have supported the Nixon Southern Strategy to date for all Republican presidential nominees.
 

"I'm not exactly sure the point of disagreement here "

As I said, that a lot of the pre-clearance consisted of prohibiting the covered states from doing things they were legally entitled to do, and that other states were routinely doing without legal challenge.

The point of pre-clearance was to keep the covered states from getting to enforce unconstitutional laws for a period of time before the legal system could stop them. Using it to stop them from doing perfectly legal things the feds happened to not like was an abuse.

That's why it wasn't legally problematic that, as soon as they were freed from pre-clearance, they went ahead and did many things they'd been stopped from doing. Those were things they were entitled to do, that other states were doing.

For example, much is made of North Carolina's efforts to reduce it's early voting by a few days. But North Carolina has an extremely long period of early voting, and many states have none at all. It's not constitutionally required that they continue to be an outlier in this respect. Early voting is not constitutionally mandatory. They could have none at all, and it would be constitutionally fine.
 

"prohibiting the covered states from doing things they were legally entitled to do,"

Begging the question
 

" that other states were routinely doing without legal challenge."

Because other states didn't have the Congressionally found problems. You don't send port inspectors to land locked states.
 

Bottom line: Under pre-clearance, the feds were refusing to let the covered states do things that were legal for other states to do. Legal for other states to do because there was nothing wrong with doing them!

The purpose of preclearance wasn't to keep the covered states from doing things that were perfectly legal and constitutional. It was so that they couldn't keep enacting laws that were unconstitutionally discriminatory, and get a few months to enforce them while the justice system played catch-up.

New York has no early voting AT ALL. It can not be unconstitutional for N.C. to slightly reduce early voting that they are not required to have in the first place.

It's like your parole officer telling you that you can't eat at McDonalds, because he disapproves of fast food. Then your parole ends, you go eat at McDonalds, and some idiot claims the fact that you're eating there demonstrates you should still be on parole.

No, it demonstrates you had an abusive parole officer.
 

"Under pre-clearance, the feds were refusing to let the covered states do things that were legal for other states to do. "

I love you and Bart's tendency to choose analogies that cut against you. Parolees and probationers routinely have to get permission to do things that others can do without permission and which they can do if given it (travel, for example).
 

Brett is back to pick little bits of comments to make his own points. The "political talking head" strategy. My quote there was in respect to a back and forth of Mr. W. and BP that at one point seemed to lead to them actually agreeing on the basic point. This is curious, so I might have been wrong.

The point of pre-clearance was to keep the covered states from getting to enforce unconstitutional laws for a period of time before the legal system could stop them. Using it to stop them from doing perfectly legal things the feds happened to not like was an abuse.

The point of pre-clearance was that there were, among the acceptable practices, so many unacceptable ones that using the normal after the fact judicial review / federal enforcement mechanisms were found by Congress, given special power by the 15A, to be not enough. A special mechanism, like a search of bags that delays even innocent passengers, was put in place to deal with the problems.

Congress when they extended the law found that the problems still existed. The fact we disagree on some cases is neither here or there -- you can simply be wrong about various things (especially since rational basis results in some inexact laws) and/or as a whole the problems can still exist enough to warrant preclearance. The fact so many people don't have bombs is not a reason to stop searching people at airports, even if they are totally innocent travelers.
 

" It can not be unconstitutional for N.C. to slightly reduce early voting t"

Brett, the issue is statutory (the VRA, not the 14th. Just as Congress could pass a law making past offenders register before they move somewhere Congress passed a law requiring past offending states to submit voting changes beforehand.
 

To take an example, moving a polling place is something states regularly do. It's not inherently problematic, but states like NC had a nasty history of doing that kind of thing with the intent and effect of denying the right to vote based on race (moving all polling places as far from black neighborhoods as possible). So they're on probation for such shenanigans, and what other states can do without prior permission (but could be challenged for afterwards) they can only do after getting clearance. Just like probationers in general.

Again, whatever you think of this as policy it's absurd to think it's in conflict with the 14th and 15th command to pass only 'appropriate legislation' in this area on the grounds that it treats states differently; the ratifies were at the time (quite rightly) treating states differently and the 14th includes a specific provision which was to be used specifically on just states Congress determined to be problems in this area.
 

This comment has been removed by the author.
 

Yes, preclearance covered behavior that on its own might be legitimate, but the enforcement power is not limited to what might be illegitimate on its own.

Congress is given the power to go beyond the immediate problem because otherwise in practice too much unconstitutional activity will occur. This principle is applied to individual rights. "Breathing space" is given to free speech; overbroad laws might be struck down there even if some aspects cover what can be regulated.

Brett's judgment of harm is a bit untrustworthy and yes NC and NY have differences as would other areas. Note however that some areas of NY were covered too.

[Mr. W. compares preclearance to the additional burdens of a parolee. That is a good example. The debate then is if the probation period should be over. Congress, with special power to do so, determined with extended fact-finding that it should not be. This was done in a bipartisan way & Rep. Sensenbrenner (R) et. al. still desires to find a way to formulate a law advancing its ends.]
 

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