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Sunday, January 16, 2022

The Unequal Footing Principle

In Shelby County, the Supreme Court invented the principle that the states are on an equal footing with respect to sovereignty. The authority cited by the Court for that proposition was remarkably weak. And the analysis was unsound because the ratification of the Fifteenth Amendment (the basis for the Voting Rights Act) was not done with each state on an equal footing, as some states (like Georgia) were required to ratify the Fifteenth Amendment to return to Congress.

There are other problems with Shelby County's broad reading of the equal footing principle. One is that when Congress readmitted the former Confederate States, many of them were readmitted with a statute that imposed special conditions on them with respect to voting and officeholding, including the express incorporation of Section Three of the Fourteenth Amendment. Another is that (before the Civil War) John Bingham pointed out that the 1787 Constitution does not treat all states equally with respect to slavery. Article One, Section Nine, Clause 1, which discusses the importation of enslaved people, says that "the states now existing" could permit slave importation unless and until Congress imposed a ban. Bingham argued that this excluded states added after the original 13, otherwise the provision would have just said "the states."

The 1868 Act of Congress readmitting some of the ex-Confederate states with conditions could become relevant in future litigation. 

Posted by Gerard Magliocca on January 16, 2022 at 10:13 AM | Permalink


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