Unmistakably Clear: Human Rights, the Right to Representation, and Remedial Voting Rights of People of Color
TOURO LAW JOURNAL OF RACE
UNMISTAKABLY CLEAR: HUMAN RIGHTS, THE RIGHT TO REPRESENTATION, AND REMEDIAL VOTING RIGHTS OF PEOPLE OF COLOR
On June 25, 2013, the U.S. Supreme Court delivered its decision in Shelby County, Alabama v. Holder1 the Voting Rights Act (“VRA”)2 case in which an Alabama county found to have violated the Act in 20083 sought to avoid the Act's application by making a facial challenge to the preclearance requirement for changes in voting that might limit the right to vote based on suspect categories. 4 The majority opinion in the 5-4 U.S. Supreme Court decision, finding that preclearance requirement to be unconstitutional, focused on equal treatment under the Constitution, and used a disparate treatment analysis in reviewing the constitutionality of a duly passed legislative act.5 Unfortunately for supporters of a strong Voting Rights Act, the equal treatment sought by the Court's majority was not of people, but of States, and the disparate treatment found problematic was the requirement that some States receive federal approval for changes to electoral rules under the 1975 review of State acts in violation of the VRA.6 In order to protect the equal *Professor of Law, Western New England University School of Law, J.D. Columbia Law School, 1999. A.B. Princeton University, 1996. 1 Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612 (2013). 2 Voting Rights Act of 1965, 42 U.S.C. §§ 1973 to 1973aa-6 (1965). 3 Shelby Cnty., Ala. v. Holder, 811 F. Supp. 2d 424 (D.D.C. 2011), aff'd, 679 F.3d 848 (D.C. Cir. 2012). 4 The U.S. Department of Justice has noted that preclearance requires “proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable.” See Dep't of Justice, Civil Rights Division, Section 5 Resource Guide, available at http://www.justice.gov/crt/about/vot/sec_5/about.php , (last visited by author March 18, 2014). 5 Shelby Cnty., 133 S.Ct. at 2623-24. 6 The Court points to nationwide bans on tests and devices to limit the franchise in 1970 (see Voting Rights Act Amendments of 1970, 84 Stat. 314), as well as the 1975 reauthorization that looked at voter registration and turnout as of 1972, expanded the VRA to forbid voting discrimination on the basis of membership in a language minority group, and made the discrimination on the basis of membership in a language minority group, and made the nationwide ban on tests and devices permanent. See Shelby, 133 S. Ct. at 2637.
MATTHEW H. CHARITY*
sovereignty of States, therefore, the decision requires a Congressional finding
that the States required to seek preclearance require greater supervision
today for the limited purposes for which preclearance is needed – the
protection of the franchise from blatant discrimination, discrimination of
sufficient gravity that the extreme recourse to federal authority is
This reading of the Voting Rights Act makes a number of tacit and
explicit assumptions with regard to the choice, by the Federal Government
and by the States, of whose rights governmental actors must protect. The
majority does so, in part, by decontextualizing the Civil Rights movement
and the Voting Rights Act from decolonization and post-World War II
expressions of human rights, a time in which there was a move toward
greater global recognition that the “other” has rights that are enforceable
based on recognition of individual human equality.8
7 See Shelby, 133 S.Ct. at 2615 (“the Act imposes current burdens and must be justified by current
needs,” quoting dicta from Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S.
193, 203 (2009)). Justice Ginsburg’s vigorous dissent in Shelby focused on the fact that Congress
had, prior to its 2006 reauthorization of the VRA, exerted considerable effort in determining that
the preclearance requirement was necessary and justified. See Shelby, (Ginsburg, J., dissenting),
133 S. Ct. 2612 at 2632, slip op. at 12-30.
8 See e.g., U.N. CHARTER, Art. 1: “The Purposes of the United Nations are: … (2): To develop
friendly relations among nations based on respect for the principle of equal rights and
selfdetermination of peoples, and to take other appropriate measures to strengthen universal peace;
(3) To achieve international co-operation in solving international problems of an economic, social,
cultural, or humanitarian character, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race, sex, language, or religion…”
(Oct. 24, 1945); UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948), on equality of persons:
All human beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or
international status of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of sovereignty.
And on voting:
1. Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will be
expressed in periodic and genuine elections, which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free voting procedures.
One way in which the Supreme Court has made such
decontextualization easier for itself is in looking for clarity from the other
branches of government before applying legal standards, which often allows
for consideration of only domestic norms. This is particularly the case where
standards might otherwise arise from or connect with foreign relations.9 The
Court has recently called for Congress to clarify its reasons for adopting
international norms for human rights issues—action that the Court finds
extraordinary--thereby creating a limitation on the scope of rights-promoting
legislation (Shelby) and its enforcement of rights in U.S. courts (Medellín,
By putting the Voting Rights Act into the context of human rights
instruments, we can see as appropriate a call for positive rights – for the
Federal Government to take positive stances to provide protections to
members of groups that have, historically and through the present day, faced
special challenges in having their voices heard, even as against a State that
does not currently act with intent to harm that population.
In this symposium Essay, I first consider the context of the Fifteenth
Amendment to the Constitution, and its work in overturning prior
jurisprudence that indicated a divorcing of constitutional protections from the
African-American population. I then turn to the context of the Voting Rights
Act of 1965 and the connection between U.S. right-protective legislation and
a global shift toward rights-protective treaties and laws. I then juxtapose the
positivist stance of international law with the current Court’s jurisprudential
posture of seeking congressional clarification and justification of rights above
all else, even in the context of civil and human rights. Finally, I conclude
that without the positivist interpretations that have permeated U.S. civil
rights legislation and jurisprudence in the past, new voting rights legislation
can achieve neither its domestic nor global potential.
9 See e.g., Medellín v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 1373 (2008) (noting the Court’s
inability to enforce a decision of the International Court of Justice based on the United States
political branches having decided to “undertake” to comply with judgments of the ICJ, but
effectively not being bound by decisions of the ICJ; and 128 S.Ct. at 1369 (“the terms of a
non-selfexecuting treaty can become domestic law only in the same way as any other law—through
passage of legislation by both Houses of Congress, combined with either the President’s signature
or a congressional override of a Presidential veto. See Art. I, § 7.”); see also Kiobel v. Royal Dutch
Petroleum, 133 S.Ct 1659 (2013) (“the danger of unwarranted judicial interference in the conduct
of foreign policy is magnified in the context of the ATS [Alien Tort Statute], because the question
is not what Congress has done but instead what courts may do.”).
1. The Fifteenth Amendment
Following the Civil War, the widespread belief that the law had to shift
dramatically to affirmatively protect the franchise for former slaves allowed
for the passage and ratification of the Fifteenth Amendment to the
Constitution. The Fifteenth Amendment gave Congress tremendous power to
fashion appropriate legislation to enforce this principle: “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.” 10 Read in conjunction with the 10th Amendment of the U.S.
Constitution, 11 recognizing that powers not accorded to the Federal
Government are reserved to the States, or the people, we recognize that the
Civil War Amendments – the Thirteenth, Fourteenth, and Fifteenth
amendments – recognize rights in the people, limiting the rights of the
federal and State governments to abridge popular rights remaining to the
individual citizen. 12 In recognizing the delegation of authority for the
protection of peoples historically excluded from State protections, the
Supreme Court stated in 1879:
It is the power of Congress which been enlarged Congress is authorized
to enforce the prohibitions by appropriate legislation. Some legislation
is contemplated to make the [Civil War] amendments fully effective.13
10 U.S. Const., Amend. XV. The Fifteenth Amendment may also be read in the context of the
Fourteenth Amendment’s equal protection clause, which notes that no state may “deny to any
person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. XIV § 1.
11 U.S. Const., Amend. X: “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.”
12 With regard to the Voting Rights Act, the Supreme Court specifically recognized the right of
Congress to protect persons ahead of the interests of States of the Union, both as the Federal
Government might act as “the ultimate parens patriae of every American citizen” (South Carolina
v. Katzenbach, 383 U.S. 301, 324 (1966)) and through the enlargement of powers under the Civil
War Amendments allowing for unequal treatment of States to remedy “local evils which have
subsequently appeared” following admission of States to the Union. Id. at 328-29. Thus, in
prohibiting state legislation that might adversely impact those previously discriminated against
without requiring proof of state intent, “Congress might well decide to shift the advantage of time
and inertia from the perpetrators of the evil to its victims,” when protecting individuals from
state-sanctioned discrimination pursuant to the Fifteenth Amendment. Id. at 327-28. This was
part of an expanded power extended to Congress under the Constitution to enforce the Civil War
Amendments. The Supreme Court recognized that Congress could implement: “Whatever
legislation is appropriate, that is, adapted to carry out the objects the amendments have in view,
whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons
the enjoyment of perfect equality of civil rights and the equal protection of the laws against State
denial or invasion, if not prohibited, is brought within the domain of congressional power.” Id. at
326-27 (citing Ex parte Virginia, 100 U.S. 339, 345-46 (1879)).
13 Ex parte Virginia, 100 U.S. 339, 345 (1879).
This recognition of the right of the individual was particularly
important, as it baldly rejected a persistent line of thought in some quarters,
and stated by the Supreme Court, that the Constitution protected those who
entered the polity through the State governments,14 and, thus, recognized the
sovereign right of the State governments to exclude from citizenship those
not intended by the Constitution to form part of the polity of the United
States. The Fifteenth Amendment dispelled that view of the Constitution’s
limited protection, specifically restricting the ability of the Federal and State
governments to withhold the voting franchise based their originalist
interpretations of the Constitution that would exclude those of African
descent from membership in the Federal and State polity, and, therefore,
deprive those persons of the protections of the Constitution. To some extent,
the Civil War Amendments were aspirational – that is, while they purported
to afford the rights of citizenship to African-Americans, State mechanisms
could be exercised to effectively prevent the exercise of the franchise, and,
thereby, the enforcement of the laws, notwithstanding the prohibition on the
“enforce[ment of] any law which shall abridge the privileges or immunities of
14 See Dred Scott v. Sandford, 60 U.S. 393, 447-48 (1857):
The principle upon which our Governments rest, and upon which alone they continue to
exist, is the union of States, sovereign and independent within their own limits in their
internal and domestic concerns, and bound together as one people by a General
Government, possessing certain enumerated and restricted powers, delegated to it by the
people of the several States, and exercising supreme authority within the scope of the
powers granted to it, throughout the dominion of the United States. … Whatever it
acquires, it acquires for the benefit of the people of the several States who created it. It is
their trustee acting for them, and charged with the duty of promoting the interests of the
whole people of the Union in the exercise of the powers specifically granted.”
However, as noted earlier in the decision, the understanding of the make-up of the people of the
Union created a limited polity:
“The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean
the same thing. They both describe the political body who, according to our republican
institutions, form the sovereignty, and who hold the power and conduct the Government
through their representatives. They are what we familiarly call the ‘sovereign people,’
and every citizen is one of this people, and a constituent member of this sovereignty. The
question before us is, whether the class of persons described in the plea in abatement
[those descended from slaves of African descent] compose a portion of this people, and are
constituent members of this sovereignty? We think they are not, and that they are not
included, and were not intended to be included, under the word ‘citizens’ in the
Constitution, and can therefore claim none of the rights and privileges, which that
instrument provides for and secures to citizens of the United States. On the contrary,
they were at that time considered as a subordinate and inferior class of beings, who had
been subjugated by the dominant race, and, whether emancipated or not, yet remained
subject to their authority, and had no rights or privileges but such as those who held the
power and the Government might choose to grant them.”
Id. at 404-05.
citizens of the United States.” 15 It is for this reason that the effective
protection of those rights defines not only the extent of their recognition by
the Federal and State governments, but also the existence of personhood and
participation in the sovereignty of the United States for those historically
The Fifteenth amendment’s perspective on protection of the previously
disenfranchised was aspirational and positivist, and those aspirations were
held in abeyance during a century of Jim Crow legislation and practices. It
was only with the rise of a post-World War II global human rights movement
that the Voting Rights Act of 1965 began the project of effectuating the
promise of the Fifteenth Amendment—of recognizing African-Americans as
“people of the United States.”
2. The Global Context of the Voting Rights Act of 1965
In placing the Voting Rights Act within the context of the post-World
War II upheaval in response to claims of ethnic superiorities, the question of
an individual protection in response to a majoritarian (or other recognized
power) denial of rights becomes paramount. Put differently, the overturning
of the racial stratification in the Civil War Amendments became a worldwide
phenomenon in the response to Nazism in Europe, and the recognition of
independence of former colonial holdings in the Middle East, Asia, and
Africa, and in the question of capitalism versus socialism in the domination of
The 1950’s and 1960’s were a period in which the international
community worked to enumerate some of the standards and laws protecting
human rights, and to move from a period of aspirational/moral obligations
(which some countries recognized as binding) to legal obligations that could
not be ignored, even by those less desirous of their recognition. Following
conventions against discrimination in employment by the International
Labour Organization in 1958 16 and in education by the United Nations
Educational, Scientific and Cultural Organization in 1960, 17 the United
Nations General Assembly passed the International Convention on the
15 See U.S. Const., Amend. XIV, § 1. The majority in Shelby noted that “[t]he first century of
congressional enforcement of the [Fifteenth] Amendment, however, can only be regarded as a
failure.” See 133 S.Ct. 2612, at 2619, citing Northwest Austin, 557 U.S. at 197.
16 International Labour Organization, Discrimination (Employment and Occupation) Convention,
1958 (No. 111).
17 United Nations Educational, Scientific and Cultural Organization, Convention against
Discrimination in Education (adopted December 1960), available at http://portal.unesco.org/en/ev.
Elimination of All Forms of Racial Discrimination (CERD) in 196518 and the
International Covenant on Civil and Political Rights (ICCPR) in 1966.19 Both
these international conventions recognize the protection of individuals by
their national governments.
CERD looks to avoid racial discrimination, defined as “any distinction,
exclusion, restriction or preference based on race, colour, descent, or national
or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other
field of public life.”20 The ICCPR seeks to protect rights “without distinction
of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.” 21 Both
these provisions describe a form of equal protection of the law, similar to that
provided through Section 1 of the U.S. Constitution’s 14th Amendment. 22
Both CERD and the ICCPR specifically recognize a right to representation in
the public sphere with certain protections based on race, ethnicity, or
language, among other categories.23 Both of these Conventions (CERD and
the ICCPR) were ratified by the United States, and were to be carried out by
the Federal Government where the Federal Government has jurisdiction, or
by the State government.24 The governmental actors might carry out the
18 UN General Assembly Resolution 2106 (adopted December 1965).
19 UN General Assembly Resolution 2200A (adopted December 1966), available at
http://portal.unesco.org/en/ev. php- url_ID=12949&url_DO-DO_TOPIC8
url_ SECTION=201.html. http://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.
20 CERD, Art. 1(1).
21 ICCPR Art. 1.
22 U.S. Const., Amend. XIV, § 1: “All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection of
23 See e.g., ICCPR ARTS. 2, 3, 26, and 27; CERD ARTS. 1, 2, 3, and 5(c).
24 See INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: Understandings of the United
States, noting, as of the U.S. ratification in 1992, “(1) That the Constitution and laws of the
United States guarantee all persons equal protection of the law and provide extensive protections
against discrimination. The United States understands distinctions based upon race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or any other
status - as those terms are used in article 2, paragraph 1 and article 26 - to be permitted when
such distinctions are, at minimum, rationally related to a legitimate governmental objective…. (5)
That the United States understands that this Covenant shall be implemented by the Federal
Government to the extent that it exercises legislative and judicial jurisdiction over the matters
covered therein, and otherwise by the state and local governments; to the extent that state and
local governments exercise jurisdiction over such matters, the Federal Government shall take
measures appropriate to the Federal system to the end that the competent authorities of the state
or local governments may take appropriate measures for the fulfillment of the Covenant.”
obligations through new law or existing law, but, per the understanding of
the United States, neither Convention was self-executing, meaning that the
U.S. understanding of those Conventions was and is susceptible to judicial
application and interpretation without action by the political branches.25
Of course, this notion of courts finding legal obligations based on
positive rights conflicts with the case and controversy reading typical of U.S.
judicial practice – that our courts decide only what is before them, and look at
the application of the law as provided by a legislature in the context of the
particular controversy.26 For that reason, recognition of certain declarations
of the U.N. General Assembly as indicative of State obligations under the
U.N. Charter by the U.S. Court of Appeals for the Second Circuit in 1980
suggested a change.
In Filartiga v. Peña-Irala, the Second Circuit noted with approval that
the Universal Declaration of Human Rights,27 perhaps the most celebrated
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV4&chapter=4&lang=en . See also INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS
OF RACIAL DISCRIMINATION, Reservations and Understandings at Ratification (1994), recognizing
“[t]hat the Constitution and laws of the United States establish extensive protections against
discrimination,” and “[t]hat the United States understands that this Convention shall be
implemented by the Federal Government to the extent that it exercises jurisdiction over the
matters covered therein, and otherwise by the state and local governments. To the extent that
state and local governments exercise jurisdiction over such matters, the Federal Government
shall, as necessary, take appropriate measures to ensure the fulfillment of this Convention.”
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV2&chapter=4&lang=en (last visited by author March 30, 2014). Thus, both the ICCPR and the
CERD recognize the need of the United States government to fulfill obligations against
discrimination, and that certain unspecified laws in existence at the time of ratification of the
Conventions (in 1992 and 1994, respectively) speak to the United States’ fulfillment of those
25 Id. (CERD, U.S. Reservations at Ratification, Art. III; ICCPR U.S. Declaration 1).
26 See e.g., South Carolina v. Katzenbach, 383 U.S. at 357 (Black, J., dissenting), looking at the
VRA § 5 preclearance requirement:
… it is hard for me to believe that a justiciable controversy can arise in the constitutional
sense from a desire by the United States Government or some of its officials to determine
in advance what legislative provisions a State may enact or what constitutional
amendments it may adopt. If this dispute between the Federal Government and the
States amounts to a case or controversy it is a far cry from the traditional constitutional
notion of a case or controversy as a dispute over the meaning of enforceable laws or the
manner in which they are applied.
27 United Nations General Assembly Resolution 217A (III) (Dec. 21, 1948). The Universal
Declaration of Human Rights begins with an acknowledgement of the inherent equality of all
humans, see id. at Art. 1, and includes the right to representation as part of a guarantee of that
Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives...The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and genuine elections, which shall be
post-World War II, post-colonial statement of the aspirations of positive
human rights, “no longer fits into the dichotomy of ‘binding treaty’ against
‘non-binding pronouncement,’ but is rather an authoritative statement of the
international community.” 28 In fact, the decision viewed as persuasive
commentators who “have concluded that the Universal Declaration has
become, in toto, a part of binding, customary international law.” The Court
noted that since the adoption of the U.N. Declarations on Torture and
Human Rights, “[m]embers can no longer contend that they do not know
what human rights they promised in the Charter to promote.”29
In looking at the Universal Declaration on Human Rights, the
American Convention on Human Rights, 30 the International Covenant on
Civil and Political Rights, and the European Convention for the Protection of
Human Rights and Fundamental Freedoms,31 the Second Circuit recognized
that torture violated the Alien Tort Statute32 because it violated the law of
nations.33 Thus, an undertaking by the United States to comply with the
law of nations in protecting fundamental rights would give effect to the
understandings of those rights found in those specific international
documents. Again, the Second Circuit’s understanding may have been
supported by the later ratifications of the ICCPR and CERD that confirmed
that many of the anti-discrimination principles in those treaties had already
been put into place under the U.S. Constitution and laws. While Filartiga
represented a common sense approach to the intent of Congress to support
international standards, it may have stood as a high-water mark in this kind
of positivist domestic interpretation of international civil rights norms.
by universal and equal suffrage and shall be held by secret vote or by equivalent free
See id. at Art. 21(1), (3).
28 Filartiga v. Peña-Irala, 630 F.2d 876, 883 (2d Cir. 1980) citing E. SCHWELB, HUMAN RIGHTS AND
THE INTERNATIONAL COMMUNITY 70 (1964).
29 Id. at 630 F.2d at 883, citing Sohn, A Short History of the United Nations Documents on Human
Rights, in The United Nations and Human Rights, 18th Report of the Commission (Commission to
Study the Organization of Peace ed. 1968).
30 Organization of American States, American Convention on Human Rights, adopted Nov. 22,
1969. This Convention mirrors the protections of the Universal Declaration of Human Rights
with regard to the right to vote. See id. at Art. 23.
31 European Union, European Convention for the Protection of Human Rights and Fundamental
Freedoms, adopted April 11, 1950 (specifically referencing the protections of the Universal
Declaration of Human Rights).
32 28 U.S.C. § 1350 (“The district courts shall have original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of nations or a treaty of the United
33 See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
3. The U.S. Supreme Court Regresses
With much of the rest of the world, U.S. courts made definite moves in
the late 20th century in acknowledging international rights norms and
obligations, but the early 21st century has thus far given the impression of a
significant regression. In 2004, the Supreme Court noted that an
international declaration like the U.D.H.R. “does not of its own force impose
obligations as a matter of international law,” citing Eleanor Roosevelt’s
comment as the U.S. representative to the drafting of the U.D.H.R., calling it
“a statement of principles … setting up a common standard of achievement
for all peoples and all nations … not a treaty or international agreement
impos[ing] legal obligations.”34
The Supreme Court moved further from international standards in the
2008 Medellín decision,35 in which the Court found that the United States
was not bound by a decision of the International Court of Justice where a
defendant Mexican national was sentenced to death without having been
provided an opportunity to talk with the Mexican consulate, notwithstanding
that the United States had ratified a treaty in 1969 36 recognizing that right.
The Supreme Court found that “the U.N. Charter reads like ‘a compact
between independent nations’ that ‘depends for the enforcement of its
provisions on the interest and the honor of the governments which are parties
to it.’” 37 Justice Roberts’ majority opinion in Medellín looks to its own
understanding of the text, and eschews a “multifactor, ‘context-specific’
inquiry” that would sometimes recognize a treaty as self-executing (requiring
no further legislative action by Congress to allow U.S. courts to enforce the
treaty’s terms), and sometimes not.38
Writing in dissent for three justices in Medellín, Justice Breyer
explains a different treatment of treaties: “The Constitution’s Supremacy
Clause provides that ‘all Treaties … which shall be made … under the
Authority of the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby.’ Art. VI, cl. 2. The Clause
means that the ‘courts’ must regard ‘a treaty … as equivalent to an act of the
legislature, whenever it operates of itself without the aid of any legislative
34 Sosa v. Alvarez-Machaín, 542 U.S. 692, 734-35 (2004).
35 Medellín v. Texas, 128 S.Ct. 1346 (2008).
36 See Vienna Convention on Consular Relations, Apr. 24, 1963,  21 U.S.T. 77, T.I.A.S. No.
6820 [596 U.N.T.S. 261 (1967)].
37 Medellín v. Texas, 128 S.Ct. 1346, 1358-59, citing Head Money Cases, 112 U.S. 580, 598, 5 S.Ct.
247, 28 L.Ed. 798 (1884).
provision.’”39 In the context, then, of a United States undertaking to follow a
decision of the International Court of Justice pursuant to the Charter of the
United Nations, Congress would have authorized recognition of a U.S.
obligation, absent a clear enactment to the contrary. After explaining seven
substantive reasons for that opinion, the dissent states: “The majority
reaches a different conclusion because it looks for the wrong thing (explicit
textual expression about self-execution) using the wrong standard (clarity) in
the wrong place (the treaty language).”40 It is this burden shifting – this
requirement of clarity in the adoption of standards by Congress – that leaves
plaintiffs without the ability to rely on either the tacit or, at times, explicit
reasoning of Congress, as the Court requires clear and explicit textual
expression to extend rights.
In Shelby, the same type of burden-shifting used by the conservative
majority in foreign relations cases to eliminate the U.S. obligation to protect
rights is used to eviscerate the preclearance requirement of the VRA. The
dissent looks to frame the issue in Shelby differently, focusing on the more
expansive view of rights that is articulated in international instruments and
was evident in the reasoning in Filartiga. The dissent41 in Shelby noted that
Congress had opted to continue the current reading of the Voting Rights Act,
including its bail out and bail in provisions,42 in part because, “As against the
reserved powers of the States, Congress may use any rational means to
effectuate the constitutional prohibition of racial discrimination in voting.”43
Under Justice Ginsburg’s rationale, reauthorization will typically satisfy the
minimal requirements of the rational-basis test, as Congress will have both
the original record and any additional material before it; that reauthorization
allows for a review after a period of time; and that the record on review
should be less stark if the law is working (there should be fewer successful
incidents of discrimination), and would only be equally stark if the law was
ineffective. 44 A major deficiency, then, with the Shelby majority opinion is
that it focuses not on the interpretation of a human right that is part of the
39 Medellín, 128 S.Ct. at 1375 (Breyer, J., dissenting) (citing Foster v. Neilson, 2 Pet. 253, 314, 7
L.Ed. 415 (1829) (majority opinion of Marshall, C. J.)).
40 Id. at 1389.
41 Justice Ginsburg’s dissent joined by Justices Breyer, Kagan, and Sotomayor, 133 S.Ct. 2612 at
42 See Shelby (Ginsburg, J., dissenting), 133 S.Ct. 2612 at 2644, noting that “[t]he VRA permits a
jurisdiction to bail out by showing that it has complied with the Act for ten years, and has
engaged in efforts to eliminate intimidation and harassment of voters,” while other jurisdictions
that were not previously covered might be bailed in – subjected to federal preclearance
requirements – “upon finding that violations of the Fourteenth and Fifteenth Amendments have
43 See Shelby, 133 S.Ct. 2612 (Ginsburg, J., dissenting) (citing South Carolina v. Katzenbach, 383
U.S. 301, 324 (1966)).
44 Id. at 2632.
treaty laws of the United States, and therefore “the supreme Law of the
Land” under the Constitution,45 but instead focuses on the appropriateness of
Congressional action under the Necessary and Proper Clause following the
formulation in McCulloch v. Maryland:46
Let the end be legitimate, let it be within the scope of the constitution,
and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with the letter and
spirit of the constitution, are constitutional.47
Having thus quoted Chief Justice Marshall, the majority and the
dissent in Shelby (through the opinions of Chief Justice Roberts and Justice
Ginsburg, respectively) re-engage an historical discussion on the
representative purpose of government, and a return to that which is ordinary
in our representative democracy in place of the extraordinary. As with its
turn from an expanded recognition of human rights, the Court has also
turned from an expansion of the protection of the individual at the expense of
the State or those in power.48 It is in this light that Justice Roberts’ elision of
the Tenth Amendment—all powers not specifically granted to the Federal
Government are reserved to the States or citizens49—should be read. The
recognition of citizenship derives, in some sense, from the State or those in
power who have given authority for the individual’s recognition as a
component of the polity.50 The Tenth Amendment, therefore, protects the
individual and individual freedom from Federal encroachment, but must do
45 U.S. Const., Art. VI, par. 2. “This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary
notwithstanding.” One might also look at the Constitutional guarantee that every state shall
have a republican form of government (U.S. CONST., ART. IV, § 4) (see e.g., Baker v. Carr, 369 U.S.
186, 229-30 (1962), for the proposition that the political question of a state form of government,
typically preventing justiciability, may not arise where a state government manipulates
municipal boundaries to deprive a citizen of the Fifteenth Amendment right to vote (citing
Gomillion v. Lightfoot, 364 U.S. 339, 344-45 (1960) (“ Legislative control of municipalities, no less
than other state power, lies within the scope of relevant limitations imposed by the United States
46 4 Wheat. 316, 421 (1819).
48 Justice Taney stated in the Dred Scott decision that those whose ancestors were “negroes of the
African race … imported into this country, and sold and held as slaves … had no rights or
privileges but such as those who held the power and the Government might choose to grant
them.” Dred Scott, 60 U.S. 393, 403-05 (1857). The clearest reading of such a clause suggests
that those holding power are the “sovereign people,” and constituents of the sovereignty of the
United States; the defining of those “citizens” specifically excludes those descended from African
49 Shelby, 133 S.Ct 2612.
50 See Dred Scott, supra note 14.
so in treating each State in the same way – assuming the State is the
repository of individual freedom.
Let us assume, therefore, that the right to vote was specifically
incorporated through the Fifteenth Amendment to apply to all citizens; that
the Constitution recognizes the particular concern for the previous
disenfranchisement of those frozen out of the polity of the United States,
specifically through the violation of State political mechanisms;51 and that
the United States Congress has recognized a continued concern for the
disenfranchisement of populations within political districts that have
historically discriminated against those considered outside of the
Constitution’s intended polity. Under that set of assumptions, the VRA
should clearly stand.
However, the Roberts majority considers legislation from the opposite
perspective: in order for the Court to enter a judgment upholding the VRA,
the government must show that Congress specifically provided that right to
the party, and that the right is not somehow created by the Court. 52
Congress must only grant those rights where they are constitutional – both
legitimate and consistent with the letter and spirit of the Constitution.53 The
legislature may not grant rights that violate the constitution, including the
“constitutional equality of the States … essential to the harmonious
operation of the scheme upon which the Republic was organized.”54 To the
extent, then, that Congress violates the equality of States, Congress must
show why “‘legislative measures not otherwise appropriate’ could be justified
51 One might note in South Carolina v. Katzenbach, the Attorney General made clear that the
history of voting in South Carolina was of concern specifically looking at actions taken in 1878
and 1882 (among other times) by the State to limit the rights of African-Americans to vote, 84 and
88 years prior to arguments before the Supreme Court in 1966, and that the South Carolina
Constitution of 1895, whose “one object” was “[t]he elimination of the negro from politics as
effectively as this could be accomplished by constitutional enactment” was 73 years before the
argument in South Carolina v. Katzenbach. See South Carolina v. Katzenbach, Brief for the
Defendant, 1966 WL 100406, at 16-19.
52 See Sosa v. Alvarez-Machain, 542 U.S. 692 at 725, for the proposition that recognition of
international standards should not be expanded by courts in noting that Holmes explained
famously in 1881 that “‘in substance the growth of the law is legislative . . . [because t]he very
considerations which judges most rarely mention, and always with an apology, are the secret root
from which the law draws all the juices of life. I mean, of course, considerations of what is
expedient for the community concerned.’. The Common Law 31.32 (Howe ed. 1963).”
53 See McCulloch v. Maryland, 4 Wheat. 316, 421 (1819); South Carolina v. Katzenbach, 383 U.S.
326 (1966) (citing McCulloch); Shelby Cnty. v. Holder, 113 S.Ct. 2612 at 2632 (Ginsberg, J.,
54 See Shelby 133 S. Ct. at 2616, slip op. at 11, ignoring the Katzenbach decision’s recognition that
the doctrine of equality of States “applies only to the terms upon which States are admitted to the
Union, and not to the remedies for local evils which have subsequently appeared.” Katzenbach,
383 U.S. at 328-29.
by ‘exceptional conditions.’” 55 In looking to the appropriateness of the
Congressional response to the on-going problem of voting discrimination, the
Shelby dissent points to the admitted continuing problem of voting
discrimination;56 the record of DOJ objections blocking 700 voting changes
that were discriminatory between 1982 and 2006;57 the determination below
that in fact an “‘extensive record’ support[ed] Congress’ determination that
‘serious and widespread intentional discrimination persisted in covered
jurisdictions;’” 58 and that “Congress was satisfied that the VRA’s bailout
mechanism provided an effective means of adjusting the VRA’s coverage over
Notwithstanding the intent of the Voting Rights Act, the Congressional
record cited by the dissent, and the reasonable inferences that might be used
to enforce the Voting Rights Act as necessary and proper even without
Congressional fact-finding to that effect, the dissent could likely borrow from
the Medellin decision to note the reason for the Shelby majority’s disquiet:
“The majority reaches a different conclusion because it looks for the wrong
thing (explicit textual expression about [the continuation of first generation
barriers to voting]) using the wrong standard (clarity) in the wrong place (the
… language [of the Voting Rights Act]).” The provisions of the VRA have
been utilized to deal with devices to prevent the effective use of the voting
franchise, as “access to the ballot” does not assure representation of
individuals previously excluded. 60 The formalism of the Court creates in
almost insurmountable standard preventing the application of the intent of
Congress. The specificity of Congressional intent must be unmistakable; the
wrong to be remedied must be extraordinary; and the constitutional right of
the State to equal treatment—a right not dispositive in prior voting rights
cases—may not be ignored.
55 Shelby, 113 S.Ct 2612 at 2616.
56 Shelby, (Ginsburg, J., dissenting), slip op. at 1, citing the majority decision, slip op. at 2.
57 Shelby, (Ginsburg, J., dissenting), Id. at 2635.
58 Shelby, (Ginsburg, J., dissenting), Id. at 2636, citing the D.C. Circuit Court’s determinations in
Shelby, 679 F.3d 848, 865-73 (CADC 2012).
59 Shelby, (Ginsburg, J., dissenting), Id. at 2644, citing the Congressional Record, H.R. Rep. No.
109-478, at 25.
60 See Thornburg v. Gingles, 478 U.S. 30, 46-47 (1982) (referencing “electoral devices, such as
atlarge elections” as “schemes [that] may operate to minimize or cancel out the voting strength of
racial minorities in the voting population.” (internal quotations omitted)). The Voting Rights Act
may have created a formula originally looking at issues such as literacy tests and access to the
ballot, but the Katzenbach Court found it “irrelevant that the coverage formula excludes certain
localities which do not employ voting tests and devices but for which there is evidence of voting
discrimination by other means.” 383 U.S. at 330-31. Even assuming different treatment for
various jurisdictions, “[l]egislation need not deal with all phases of a problem in the same way, so
long as the distinctions drawn have some basis in practical experience.” Id. at 331.
The VRA has, over time, developed a multi-faceted, context-specific
analysis to look to the substantive right of persons to vote, in a manner that
might disturb a textualist. As in Medellin, one might be concerned that “a
multifactor, judgment-by-judgment analysis … would jettison relative
predictability for the open-ended rough-and-tumble of factors.”61
An international analysis of voting rights calls for—in fact, requires—
just such a “rough-and-tumble of factors.” There are strong arguments that
the international provisions recognizing a need for the United States to
protect and expand the franchise are already national law.62 Even if the
international obligation has not been enacted through Congress, U.S.
jurisprudence has long required that, where possible, Congressional
enactments should be interpreted so as not to violate international law.63
International agreements (i.e., treaties) may recognize that the United States
already meets its obligations in preventing discrimination under the
Constitution and the laws of the United States; treaties recognizing a need to
extend voting rights to minorities previously discriminated against effectively
do just that.
Notwithstanding the confluence of international obligations and
domestic legislation, Congress and the courts may recognize that treaties are
not self-executing, and that courts may not enforce the terms of the treaty
without an act of Congress. 64 This would prevent the judiciary’s
interpretation of a treaty that is not specifically self-executing, and thus
preclude the issuance of a “blank check” to the judiciary to apply what laws it
will.65 While the Senate has called for Congressional action to make the
ICCPR and CERD enforceable, Congress has already acted to extend the
franchise, such that no blank check is necessary. The Court has engaged in
its own rough-and-tumble constitutional analysis in selecting what aspects of
the Voting Rights Act are necessary, and which aspects are extraordinary,
going beyond the explicit authority of Congress to craft laws necessary and
proper. The Shelby majority has applied a clarity standard comparable to
that used to limit the application of international law to limit the extent of
61 Medellin, 128 S.Ct. at 1362 (internal quotes omitted).
62 Indeed, some amici curiae referenced the ICCPR and CERD in seeking protection of the
franchise. See e.g., Brief for the National Lawyers Guild in Support of Respondents at 9-14,
Shelby Cnty v. Holder, No. 12-96 (U.S. June 25, 2013).
63 See Murray v. The Charming Betsey, 6 U.S. 64, 118 (1804), “an act of Congress ought never to
be construed to violate the law of nations if any other possible construction remains….”
64 See Medellín v. Texas, 128 S.Ct. 1346, 1362 (2008), where Chief Justice Roberts states that the
Constitution allows for treaties to be enforceable not by judicial decision, but through the process
of the political branches making them law as recognized by the U.S. Const., Art. 1, § 7: “that
treaties could create federal law, but again through the political branches, with the President
making the treaty and the Senate approving it.”
the Voting Rights Act, noting that the dissent’s reliance on “second
generation barriers” in voting dilution “highlights the irrationality of
continued reliance on the [VRA] § 4 coverage formula, which is based on
voting tests and access to the ballot, not vote dilution.”66 However, such a
test evidences an inconsistency in dismissing deference to Congressional
findings under the VRA, and demanding Congressional authority for
application of international standards.
The Shelby majority’s limiting the application of the Voting Rights Act
should be a disappointment to rights advocates: by creating a majoritarian
right in States to decide how States allow for suffrage (until such time as
Congress extends equal protection to each State government), the decision
undermines the purpose of the Act, and goes against the purpose-based and
rights-expanding findings in Katzenbach and Gingles. The decision also
undermines past moves toward the protection of fundamental norms
recognized in Filartiga, and violates treaty rights inuring to the individual,
found in the ICCPR and CERD. However, the Court’s recent trajectory
evidences a consistently heightened burden of proof before extending rights
guarantees at the expense of government actions. As this essay argues, the
heightened burden for the provision of positive rights not only contradicts
U.S. precedent, it creates an international violation of fundamental rights.
Perhaps, then, the promise of “relative predictability” has shortcomings; but,
absent clear Congressional statements on the protection of human rights in
the face of potential majoritarian backlash, the Shelby decision promises such
predictability for years.