by Steven D. Schwinn, associate professor of law at the John Marshall Law School in Chicago and an editor of the Constitutional Law Prof Blog. This post is part of an ACSblog symposium on Shelby County v. Holder.
When the Supreme Court takes up the Voting Rights Act case this week, Shelby County v. Holder, the Justices will focus on this question: Whether Congress had authority under the Fourteenth and Fifteenth Amendments to require certain jurisdictions to gain federal preclearance before making any changes to their election laws. But lurking in the background of the Question Presented is a curious nod to federalism. Thus the Court will ask if Congress exceeded its authority, then did it violate the Tenth Amendment and Article IV—provisions that, according to the petitioner, protect states’ rights.
We might wonder where this federalism concern comes from. After all, neither the Tenth Amendment nor Article IV limits federal authority because of states’ rights. Neither provision says anything about the substantive scope of federal authority; and neither provision obviously grants a claim of states’ rights. Instead, they simply outline the necessary relationship between the federal government and the states in a federal system like ours. These provisions are, at most, a blueprint for federalism. They add nothing to the core question of congressional authority, the real issue in the case.