The Author critiques the Supreme Court’s analysis in its Shelby County v. Holder decision, which found the preclearance requirement of the Voting Rights Act unconstitutional by applying a disparate treatment analysis to how States were treated under the Act. Such a reading of the Act makes a number of tacit and explicit assumptions with regard to the choice by the Federal Government and by the States of whose rights governmental actors must protect. The Court reached its conclusion by decontextualizing the Civil Rights movement and the Voting Rights Act from decolonization and post-World War II expressions of human rights, a time in which there was a move toward greater global recognition that the “other” has rights that are enforceable based on recognition of individual human equality.
In this Essay, the Author considers the context of the Fifteenth Amendment and its work in overturning prior jurisprudence that indicated a divorcing of constitutional protections from the African-American population. The Author then turns to the context of the Voting Rights Act of 1965 and the connection between U.S. rights-protective legislation and a global shift toward rights-protective treatises and laws. Then the Author juxtaposes the positivist stance of international law with the current Court’s jurisprudential posture of seeking congressional clarification and justification of rights above all else, even in the context of civil and human rights. Finally, the Author concludes that without positivist interpretations that have permeated U.S. civil rights legislation and jurisprudence in the past, new voting rights legislation can achieve neither its domestic nor global potential.
Matthew Charity, Symposium: Unmistakably Clear: Human Rights, the Right to Representation, and Remedial Voting Rights of People of Color, 17 BERKELEY J. AFR.-AM. L. & POL'Y 200 & 7 J. RACE, GENDER & ETHNICITY 200 (2015) (invited symposium submission).