Constitution Check: What does the 10th Amendment have to do with voting rights?

Lyle Denniston looks at how one justice could be a key factor as the Supreme Court evaluates the 10th Amendment and the Voting Rights Act.

The statement at issue:

“The America that elected and reelected Barack Obama as its first African American president is far different than when the Voting Rights Act was first enacted in 1965. Congress [in 2006] unwisely reauthorized a bill that is stuck in a Jim Crow-era time warp. It is unconstitutional.”

– Edward Blum, director of the Project on Fair Representation, in a statement on November 9 that was widely quoted in the press. He was reacting to the Supreme Court’s agreement to rule on the constitutionality of key parts of the federal Voting Rights Act of 1965. Mr. Blum’s organization is a Virginia-based legal advocacy group that often challenges laws that it believes foster racial preferences; the Project is underwriting the lawsuit now before the court.

We checked the Constitution, and…

The 10th Amendment was not added to the Constitution until after that basic document had been ratified, but it was, in fact, actually necessary to help fulfill the promise made at the Philadelphia Convention to the smaller states. That was a pledge that they would not have to give up all of their powers to the new federal government.

Since then, the 10th Amendment has had a rather checkered history: Sometimes, it has worked as a strong curb on federal authority, other times much less so. But whenever it has had a genuine revival, that has usually come from the U.S. Supreme Court.

Right now, it is having another such revival at the hands of the court, and that–more than anything else–explains why the Supreme Court has agreed to decide the constitutionality of the most important provision of the 1965 law that has been the nation’s most successful civil rights law.

The 10th Amendment, of course, embodies the concept that the federal government’s powers are limited to specific grants by the Constitution itself, so the remainder of governing authority is “reserved to the states…, or to the people.”

Because of the limits on national power, James Madison actually thought the 10th Amendment was unnecessary, but he would later yield to the political reality that it had to be a part of the Constitution.

Its potency as a check on the federal government was not truly demonstrated until 1883, when the Supreme Court relied upon it to strike down a major post-Civil War civil rights law. Periodically after that, the court would breathe new life into it, as it did during the New Deal and, most recently, in the 1980s and 1990s, in what has been called the “federalism revolution” in the court.

Among the current members of the court, Justice Anthony M. Kennedy has come to be regarded as the primary guardian of the sovereignty and dignity of the state governments, and he considers their role to be part of the basic design of the Constitution. He has written that the guarantee of federalism written into the 10th Amendment is important not only to the state governments themselves, but to the whole notion of individual liberty.

In that role, he was a sharp critic of the 1965 Voting Rights Act three years ago, when the court last heard a case on the constitutionality of the key provision of that law–Section 5.

That is the section that requires nine state governments (mostly in the South) and local governments in seven other states to get official approval in Washington before they may put into effect any new law or procedure on elections and voting.

About Constitution Check

• In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Congress singled those out because, in past history, they had had the worst records on racial discrimination in voting. But Congress has not updated the formula on which state and local governments get covered since adopting the baseline year of 1972, even while repeatedly extending the law, and covered states have been arguing strenuously in recent years that they have changed and that the law is unconstitutional when it applies only to them.

In a 2009 hearing, Justice Kennedy conceded the importance of Section 5: “I think this Section 5 preclearance device has been shown to be very, very successful.” But he then added: “The question is whether or not it can be justified when other states are not covered today.”

At another point in the hearing, Kennedy made his objection even clearer: “Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in the other.”

When the decision in that case came out later in 2009, the court opted to bypass the constitutionality question, but its opinion attempted to send a strong signal to Congress that it was time to update the law. Congress had extended the law in 2006, for a renewal period of 25 years, but it did not change the coverage rule. It had found that the most serious problems of discrimination continued to be centered in the covered areas.

Whether or not Congress could muster the votes to alter Section 5 after the Supreme Court’s 2009 decision, the lawmakers made no change, and did not even conduct a new review of the law. That prompted covered states to begin a new round of challenges, relying on what they regarded as the strong hints the Supreme Court had sent.

Civil rights groups will be arguing that the court should continue to defer to Congress’ findings that Section 5 is still needed, and it is still valid for only those states that are covered.

But, going into the court’s planned review, they appear to face a major obstacle: Justice Kennedy, and how he reads the 10th Amendment. The review will focus on Congress’s power to enforce the 14th and 15th Amendments, but the 10th Amendment is the true constitutional heart of the challenge.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.