The Dillard Doctrine

Urban Conservative Commentary on Politics & Life

Clarence Thomas is Right

…and at the typing of those words from me, the world stops spinning and hell freezes over.

Yesterday, on an 8-1 vote, the Supreme Court punted on deciding the constitutionality of Section 5 of the Voting Rights Act, which requires certain states and localities to get clearance on any changes they make to their voting laws (my home, Virginia, being one of those states). Justice Thomas was the one dissenting vote…

…which set off the (usual?) firestorm among some of my more liberal-minded friends. Yep, good ol’ Unca Tom Clarence sold out his own kind again! He don’t care nothin’ about us!

Not so fast. Let’s see what Thomas actually said in his dissent.

Here’s how the dissent opens:

This appeal presents two questions: first, whether appellant is entitled to bail out from coverage under the Voting Rights Act of 1965 (VRA); and second, whether the preclearance requirement of §5 of the VRA is unconstitutional. Because the Court’s statutory decision does not provide appellant with full relief, I conclude that it is inappropriate to apply the constitutional avoidance doctrine in this case. I would therefore decide the constitutional issue presented and hold that §5 exceeds Congress’ power to enforce the Fifteenth Amendment.

The doctrine of constitutional avoidance factors heavily in the Court’s conclusion that appellant is eligible for bailout as a “political subdivision” under §4(a) of the VRA. See ante, at 11. Regardless of the Court’s resolution of the statutory question, I am in full agreement that this case raises serious questions concerning the constitutionality of §5 of the VRA. But, unlike the Court, I do not believe that the doctrine of constitutional avoidance is applicable here.

The “doctrine of constitutional avoidance” is a principle of statutory interpretation suggesting that (from Wikipedia, with my emphasis):

If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.

What’s Justice Thomas upset about? The fact that SCOTUS didn’t do their job and decide whether Section 5 is actually constitutional or not. Which seems to be-at least in part-the reason for his dissent.

Now, those who know me well know that I’m not the biggest fan of Thomas; sometimes I wonder if he’s just out to prove a point. Going on in his dissent, he goes on to outline why he thinks Section 5 is a) unconstitutional and b) has outlived its usefulness. Disagree with A, agree with B…but whatever, that’s the way of the world.

But if you ask me, he’s right on this one.

The Supreme Court “deals with matters pertaining to the federal government, disputes between states, and interpretation of the United States Constitution, and can declare legislation or executive action made at any level of the government as unconstitutional, nullifying the law and creating precedent for future law and decisions. (again, from Wikipedia and with my emphasis)”

Can anyone honestly say that they did that in this case?





Written by Coby Dillard

June 23, 2009 at 7:41 am

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