07/01/2013 08:27 am ET Updated Aug 31, 2013

The 15th Amendment Trumps the 10th Amendment on Voting Rights

When the United States adopted the Fifteenth Amendment, it changed the Constitution and all prior amendments, including the Tenth Amendment, with respect to voting rights based on race or color.

There has been an ongoing battle over whether the omission of the words "expressly granted" from the Tenth Amendment's reservation of powers to the states or the people meant that that Congress has great latitude employing the "necessary and proper" clause to create, e.g., Medicare, to carry out its enumerated power to provide for the "General Welfare", or whether the founders made a mistake, and really meant for Congress to be limited only to the enumerated powers, as if the "necessary and proper clause" did not exist, and as if "expressly" were actually written into the Tenth Amendment.

But this so-called "controversy" -- long-settled, but not in some peoples' minds -- is not germane. The Fifteenth Amendment created an additional enumerated power. As such, it "amended" the Tenth Amendment, providing Congress, and not the States or the people, the power to ensure that voting was neither denied nor abridged on account of race or color.

How can anyone possibly know all of this with such certainty? Well, the Fifteenth Amendment is brief, so everyone can read it in its entirety:

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 the power to enforce this article by appropriate legislation. [emphasis added]

See: It says "Congress shall have the power." If one refers back to Article I, Section 8, where Congress's powers were listed, as granted at that time, it reads, "Congress shall have Power...."

Since this obvious observation seems to have eluded the justices, it must be difficult to comprehend, so let us come at it another way. Think of each of the original colonies (states) existing with each having complete power over everything, as determined by their own "contracts" with their own citizens.

Then, they come together, and decide to cede some of that power to a newly-created central government. They list those powers in the Constitution.

So, the listed powers are granted from the states to the central government. We call them the "enumerated powers."

Eighty years pass. The states and people decide that an amendment is required to cede to the central government another enumerated power, to ensure that voting rights are not denied or abridged based on race or color.

Voila! Once that amendment passed, whatever residual power the states may have had over ensuring that voting rights are protected regardless of race or color, it was no longer "reserved to the states," but became a power of the central government. We, the people, through our elected state representatives agreed to cede power.

We did the same thing eight times, through Constitutional amendments, specifically by language in the Amendment, ceding eight additional powers from the states to Congress, thus adding to Congress's enumerated powers:

• Abolition and prevention of slavery (XIII)
• Enforcement of due process, and equal protection of the laws (XIV)
• Preventing voting rights from being denied or abridged on the basis of race or color (XV)
• Laying and collecting income taxes (XVI)
• Preventing voting rights from being denied or abridged for women (XIX)
• District of Columbia voting for President (XXIII)
• Preventing poll taxes or any other taxes in order to vote (XXIV)
• Preventing voting rights from being denied or abridged for any citizen 18 years or older (XXVI)

Even under the strictest reading, the Tenth Amendment is inoperative to prevent or limit Congress's authority to legislate these matters.

Hence, Chief Justice Roberts' Tenth Amendment arguments in the Voting Rights Act case are illegitimate on their face. Congress's power ensure the right to vote regardless of race or color is as plenary as its powers to grant letters of patent, to declare war, to provide and maintain a Navy, or any of the original seventeen enumerated powers.

In addition to Congress's eighteenth original power, to make all laws "necessary and proper" to carry out the enumerated powers and all other powers granted to the federal government, there are now, with amendments, twenty-six enumerated powers. [Pretty cool! We are one awesome group of people!]

Hence, Congress need not tread lightly into the area of protecting against denying or abridging the right to vote based upon race or color. There is no necessity to balance states' rights with federal. There is no "grave issue" of federal power raised. The federal power is complete.

Chief Justice Roberts's other argument, that the states are entitled to "equal sovereignty," may be a nice idea, but it is not found anywhere in the Constitution.

Could it, however, be inferred from the structure and make-up of the Constitution?

Strict constructionists as they are (or claim to be), the Chief Justice and his right-wing colleagues cannot infer anything from the Constitution not written in its words. There are no words that say "equal sovereignty" or its eighteenth-century equivalent.

If, however, one were in the "inferring business," the weight of inference is actually against the Chief Justice's "equal sovereignty" invention. In two of the three elected branches, there is decidedly unequal sovereignty. States are represented in the House based upon population, and the president is elected by electors allocated unequally among the states. Only the Senate embodies equality among the states.

There is, moreover, a principle of constitutional interpretation that holds that, if the founders (or amendment writers) do something in one area, that "they know how to do it," and thus its omission from other portions may be deemed deliberate.

The very first power granted Congress in article I, section 8, clause 1 is:

To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [emphasis added].

Here, then, the Framers demonstrated that they knew how to construct equal treatment among the states for taxation, and, and thus the omission of that concept from other parts of the constitution is most properly interpreted as their having had no intention to do so. And, of course, we all know that the Sixteenth Amendment explicitly eliminated the uniformity requirement:

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." [Emphasis supplied].

The Framers, therefore, showed they had both thought about uniformity and knew how to impose it, but did so only in respect of taxes, not more generally; and, this one place was explicitly eliminated by the Sixteenth Amendment.

At the time the Fifteenth Amendment was passed, the Sixteenth Amendment did not exist (yep, 16 comes after 15). The uniformity requirement for taxes still existed. Had the authors of the Fifteenth Amendment wanted Congress's power to be exercised only uniformly, they had the example still extant right before them. They did not do it.

Hence, Justice Roberts's "equal sovereignty" principle has no basis in the text nor may it be inferred.

The Chief Justice's opinion in the case (Shelby County v Holder) relied entirely upon "equal sovereignty" and the Tenth Amendment's reserving for states the right to govern and regulate its own elections:

a) In Northwest Austin, this Court noted that the Voting Rights Act "imposes current burdens and must be justified by current needs" and concluded that "a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." These basic principles guide review of the question presented here.

(1) State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including "the power to regulate elections." There is also a "fundamental principle of equal sovereignty" among the States, which is highly pertinent in assessing disparate treatment of States. [Emphasis added].

But, equal sovereignty is the Chief Justice's invention. It is not in the Constitution and, if anything, the structure of the Constitution and the make-up of the government it created show that there was no intention to accord states equal sovereignty.

And, while it is generally true that states retain broad powers to regulate elections, they surrendered their power via the Fifteenth Amendment with respect to denying or abridging voting rights based upon race or color.

So, if States rights on race and color voting discrimination were trumped by the Fifteenth Amendment, and if equal sovereignty is a mere figment of the Chief Justice's imagination, that is, no person's or entity's constitutional rights or prerogatives were impinged by the Voting Rights Act, then one has to wonder what animated Reagan Justice Department attorney, John Roberts, to make destroying the Act one of his life's missions.

Indeed, Chief Justice Roberts's opinion in Shelby reads very much like the memos he wrote while in the Reagan justice department. Even then, he said that the "intrusion" raised grave constitutional questions.

But, that is only if one believes that when the Fifteenth Amendment said that "Congress shall have the power," it did not really mean it. And, that when the authors of the Fifteenth Amendment did not include uniform treatment of states, that they somehow forgot or did not see how to do it.

When Chief Justice Roberts was questioned by the Senate Judiciary Committee prior to his confirmation, he said the Court should be "just an umpire."

In Shelby, he called strikes before the pitcher threw the ball.