Thursday, June 22, 2017

The Lawyers Briefly Seize Control of POTUS Twitter

Gerard N. Magliocca

Today part of the news is that the President does not, in fact, have recordings of his conversations with former FBI Director Comey.  The President's Twitter account (in two tweets) explained:

"With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea whether there are "tapes" or recordings of my conversations with James Comey, but I did not make, and do not have, any such recordings."

Something is amiss here. Read the sentence again. This does not sound like the President's normal language on Twitter.  It sounds, instead, like something that a lawyer writes.  The giveaways are the use of the quotes around the word "tapes," and the formal phrase "any such." Lawyers say things in this way because they are more precise.

As a House committee was requesting the disclosure of any "tapes" of any such conversations, it is not surprising that the President would run his answer by the lawyers before hitting Tweet.  Hopefully he'll start making that a regular habit.

Wednesday, June 21, 2017

Who are the Statesmen of Constitutional Law?

Richard Primus

Just noticing:

Chief Justice Roberts, in NFIB v. Sebelius, wrote that a (putative) rule of constitutional doctrine, namely the action/omission distinction in the context of the commerce power, is sensible in light of the fact that the Framers were “practical statesmen, not metaphysical philosophers.” 567 U.S. 519, 555.

Felix Frankfurter and Henry Hart, in what was essentially the Harvard Law Review Foreword for 1935, wrote that crucial elements of the Supreme Court’s practices in constitutional adjudication “express the sensibilities of statesmen, not the formulation of technicians.” See 49 Harv. L. Rev. 68, 94 (1935).

The two sources describe, more or less, the same virtue.  But they claim it for two different groups of people.  Because the statesmen Frankfurter and Hart were describing weren’t the Framers.  They were the Justices. 

Tuesday, June 20, 2017

Health Care and Reconciliation

David Super

     Last December, I wrote about how the strange world of congressional procedure, and particularly budget reconciliation, was likely to shape the agendas of Speaker Ryan, Majority Leader McConnell, and President Trump.  Quite a bit has happened since then, but budget process rules remain pivotal.  It therefore seemed time for an update.

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Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Marty Lederman

The constitutional analysis in the Supreme Court's decision yesterday in Matal v. Tam is, with one exception, split between two four-Justice opinions, the first written by Justice Alito (joined by the Chief Justice, and Justices Thomas and Breyer), and the second written by Justice Kennedy (joined by Justices Ginsburg. Sotomayor and Kagan).   Here are a few preliminary reactions to those opinions.

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Speaking of Executive Deference

Deborah Pearlstein

The Supreme Court’s decision yesterday in Ziglar v. Abbasi is an abysmal result for those who believe there should be some remedy available when the government violates your constitutional rights – even if Congress has not gotten around to enacting separate legislation creating one.   As others have by now pointed out, it is abysmal as an exercise in legal reasoning as well, whether one agrees with the outcome or not.  What it should not be, as some colleagues have suggested, is fodder for the broader debate – about which I wrote last week in the Trump immigration order context, below – about whether and when the President’s reasoning is entitled to judicial deference in matters of national security. 

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Presents, Emoluments, and Corruption

Guest Blogger

Simon Stern

The government’s motion to dismiss in CREW v. Trump features a two-prong argument on the central issue in the dispute, namely, the meaning of the term emolument in the provision stating that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” The DOJ’s argument presumably offers a template for the government’s position in the other emoluments cases. First, according to the DOJ, the term emolument was “widely understood at the framing of the Constitution to mean any compensation or privilege associated with an officesuch as tolls, rents, fees, and the like, attached to the performance of official duties. Whether this claim can stand up to historical scrutiny remains doubtful, in light of analyses by John Mikhail (here and here), and by Joshua Matz and Larry Tribe.

Second, according to the DOJ lawyers, it makes no difference that the term emolument also carried a broader sense, extending to “anything of value” such as a “benefit,” “advantage,” or “profit,” because (quoting Virginia v. Tennessee, 148 U.S. 503, 519 (1893)), “where a word is capable of different meanings or ‘[w]here any particular word is obscure or of doubtful meaning, taken by itself,’ the ‘obscurity or doubt may be removed by reference to associated words.’” Again quoting Virginia, the DOJ adds that we should construe terms by “apply[ing] to them the meaning naturally attaching to them from their context.” This trenchant observation, however, cuts in precisely the opposite direction from the one the DOJ urges.

No one seems to have any difficulty understanding what is meant by present, the word that precedes emolument on the list. People who receive presents might feel obliged to reciprocate, and even if they act with the best of intentions, their vigilance might occasionally flag. Instead of making government officials monitor themselves, the Constitution seeks to keep that need from arising in the first place. By the same token, the prohibition also prevents the circumstances that would make others look askance when a state actor confers favors, or offers preferential treatment that might appear to result from this sort of appreciative attitude. In an article on diplomatic gift-giving in the later eighteenth and early nineteenth centuries, Robert Ralph Davis, Jr. catalogued a wide array of presents that were prohibited under this clause, including snuffboxes, jewel-encrusted portraits, medals, porcelain, and, on one occasion, two horses and a lion. (Small gifts of fruit were okay, apparently.)

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Friday, June 16, 2017

Opposing Trump's Muslim Ban At The Supreme Court

Corey Brettschneider

President Trump has asked the Supreme Court to lift the orders preventing him from implementing his revised travel ban. Nelson TebbeMicah Schwartzman and I, along with a large group of constitutional law scholars, have filed a brief opposing Trump's motion.

In our filing at the Supreme Court, we argue that the travel ban is an unconstitutional violation of the Establishment, Equal Protection, and Free Exercise Clauses. We demonstrate why Trump's recent tweets constitute additional evidence for his animus-based motivation. And we respond to the government's argument that the 4th Circuit engaged in a novel, unjustified expansion of the Establishment Clause.

Thanks to distinguished lawyer Roberta Kaplan and her team for drafting a terrific brief.

*Cross-posted at

Thursday, June 15, 2017

The Appeals Courts Aren’t Deferring At All to the President’s National Security Defense of His Travel Ban – Is This a Trump Thing or a Presidency Thing?

Deborah Pearlstein

The past week saw the Ninth Circuit Court of Appeals joining the Fourth Circuit in concluding that the Trump Executive Order (the Order) barring nationals from 6 Muslim-majority countries is so likely to violate the Constitution or laws of the United States, the Order cannot be allowed to take effect.  The Fourth Circuit thought the ban ran afoul of the Constitution’s prohibition against religious discrimination; the Ninth Circuit thought the President failed to comply with statutory restrictions on executive immigration power.  But both decisions turned on the courts’ basic rejection of the President’s argument that the Order was necessary to protect national security.

Regardless whether the Supreme Court decides to review these decisions (in the face of ample reasons not to), the lower courts’ decision-making is already striking. As others have by now pointed out, there are plenty of cases to which the courts could have pointed for the generic proposition that presidents are entitled to deference by the courts on matters related to immigration, and matters related to national security – a practice one might imagine is only amplified when a case sounds in both immigration and national security together.  So why have the courts been so determined not to defer to the President here?

A number of writers over the past few weeks (e.g. here) have suggested that the courts are not deferring in these cases because they categorically do not trust this President.  That is, between this President’s chronic expressions of disdain for the U.S. intelligence community, the judiciary, and the independence of federal law enforcement (and other not-in-the-briefs behaviors) – the courts have now cast aside the ordinary deference to which Presidents are entitled because “this president so obviously has not earned it.” Yet as well deserved as such general judicial distrust would be, there is nothing in either decision to suggest their holdings were based on a unique absence of trust here. And while it might not take too much psychologizing to support a hypothesis that many federal judges in fact do not trust this president, I would be more likely to embrace the view that this is really what’s going on in these decisions if the reasons the courts had given were so implausible or otherwise unique in the course of ordinary jurisprudence in these fields that some alternative explanation had to be the real one.

Dawn Johnsen offers a more detailed but still Trump-specific explanation, arguing that this President should fairly be understood as having ceded all claim to the traditional basis for judicial deference, which “embodies assumptions that the president’s actions reflect regular processes behind-the-scenes, that the decisions are informed by expertise and judgment….”  Indeed, the Ninth Circuit’s decision relies expressly on the Order’s lack of statutorily required “finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.”  But the Ninth Circuit does not cite process failures per se for the inadequacy of the President’s judgment.  Rather, it concludes that the “findings” the President made “do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.”  In a world in which a president needs only invoke the words “national security” to secure judicial deference, the President’s assertion here might suffice.  But it would be a mistake to think that’s the judicial world in which we reliably live.  On the contrary, the Ninth Circuit here does exactly what the Supreme Court did in striking down the original military commission system established under an entirely different president. In Hamdan v. Rumsfeld (2006), the Court applied a statutory requirement that any deviation from existing (statutory) military trial procedures be supported by a presidential determination that it was “impracticable” to apply those procedures.  As the Hamdan Court concluded, “[n]othing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case.” The President’s ‘findings’, such as they were, were exactly as inadequate to support its action in that case as this President’s are here.  Again, without doubting the existence of any number of unique irregularities in the Trump process that produced this particular executive order, the Ninth Circuit is not-deferring in a way that is familiar in the post-9/11 world.

Then there is the prospect that “Trump’s extraordinary – indeed, unprecedented – behavior” means he is not entitled to traditional judicial deference because we lack “a plausible basis for believing” what judicial deference otherwise assumes – that the President is not making decisions “in bad faith, or on the basis of impermissible motives.”  Indeed, it was exactly the opposite conclusion – namely, that plaintiffs had “plausibly alleged with sufficient particularity” that the reason for the government action was provided in bad faith – that led the Fourth Circuit to look behind the Order’s stated national security basis to examine whether Trump’s actual motives violated the Constitution’s Establishment Clause.  Yet the court’s move here likewise reflects nothing new under the deference sun. Rather, the Fourth Circuit expressly applies the longstanding, profoundly deferential standard in 1972’s Kleindienst v. Mandel providing that the courts will not look behind the executive’s exercise of discretion to exclude aliens from the United States so long as the executive “exercises this power on the basis of a facially legitimate and bona fide reason.”  Where there is evidence that the reason is not bona fide – the literal translation of which is good faith – the court has long retained the power to look behind executive immigration actions. Trump’s bad faith may be unprecedented, but the courts’ concern about bad faith is not.

Trump’s Order, the chaos that surrounds it, and the President who signed it are unique in all kinds of ways.  The courts’ approach to it not nearly as special as all that.

The Biggest Jurisprudential Mistake Made in Politics

Guest Blogger

Scott Shapiro

Twitter exploded three days ago when Chris Ruddy, publisher of Newsmax and friend of Donald Trump, reported on CNN that the President was thinking of firing the Special Prosecutor, Robert Mueller. There was predictable outrage (this is Twitter, of course): How could the President fire the special prosecutor when he is likely to be (and we now know is) a target of Mueller’s investigation? The blowback was even stronger than when Trump fired Comey, for Mueller had only been appointed last month and could not possibly have given the President cause for dismissal.

Some responded that the President is the chief executive of the United States. He has the legal authority to dismiss anyone who works in the executive branch. He’s the Decider. (Let’s ignore the subtleties of whether or exactly how he could do this. For discussion, see here and here). Alan Dershowitz, for example, has argued that “President Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.” The idea seems to be that someone can’t be criminally responsible for a legally authoritative action. “A president cannot be charged with a crime for properly exercising his constitutional authority.”

Unfortunately, this response misses an important jurisprudential distinction, one that is routinely conflated in political discussions: having a legal power to act does not imply a legal permission to exercise that power. You can do some act in the sense that the law gives you the power to do it, and you can’t do that very same act in the sense that the law forbids using that power.

Two simple examples perfectly illustrate this point. Jurors have the power of jury nullification, meaning they can acquit against the weight of the evidence.  But judges instruct jurors not to use this power, instead directing them to decide cases using only the evidence admitted during the trial and the legal instructions provided. Jurors have the legal power of jury nullification, but it would be legally wrong for them to exercise it.

Or suppose you sign a contract with Donald Trump to buy one of his properties. But before you close, he signs a second contract with another person and closes on that deal first.  He will have successfully sold the property to someone else, even though he violated his contractual duty to you not to do so.

As philosophers have long recognized, people can have a right to do wrong. The law may give persons a legal right to perform some action even though there are situations where exercising that right would be wrong. In such cases, you have both a legal right (understood as a power) that you don’t have the right (understood as a privilege) to exercise.

Thus, even if the President has the authority to fire the special prosecutor, he is under a duty not to exercise that power for the purpose of obstructing justice.  He can fire Mueller and he can’t fire Mueller.  In this way, the President is no different from a juror or an unscrupulous real estate developer.

Scott Shapiro is Charles F. Southmayd Professor of Law and Professor of Philosophy. You can reach him by e-mail at scott.shapiro at

Wednesday, June 14, 2017

Overcoming a Congressional Massacre

Gerard N. Magliocca

The shooting today in Virginia raises a constitutional issue that comes up periodically and should be addressed with an Article Five amendment.

Suppose most of the members of the House of Representatives were killed in a terrorist attack (either domestic or foreign). There is only one constitutional way to replace these dead members--a special election called by each affected state for the vacancies. This process, though, would take months.  In the interim, the surviving members of the House (even if there were, say, only twenty left) would be forced to act as the House and consider emergency legislation in the wake of that crisis. The Senate, does not face this problem. Deceased Senators can be replaced (under the Seventeenth Amendment) by an appointment from the Governor of their state, though state law can choose to require a special election instead.

Consequently, many scholars and members of Congress have proposed that the Constitution be amended to say that if a mass vacancy occurred in the House, then Governors would be able to appoint interim replacements. In 1960, such an amendment was proposed due to the concern was that a nuclear bomb would incapacitate the House. After 9/11, the proposal was revived in the wake of the failed attempt to blow up the Capitol.

These Article Five amendment proposals have never received the necessary support in Congress.  Perhaps that is because the idea that all House members must be elected is considered sacrosanct. Or maybe it is because the thought that such a disaster would occur seems too far-fetched.  Neither is true.  Hopefully action can be taken before the crisis is upon us.

Trumping the Constitution


Yesterday I gave a talk at a Yale Law School Alumni luncheon in New York City.  This is a summary of my remarks. (It is not a transcript—I spoke from notes.)

* * * * *

When you think about politics these days, it’s hard to avoid focusing on Donald Trump’s remarkable rise to power and his even more remarkable presidency. It’s even harder to avoid thinking about the scandals swirling around him day to day. It’s not that I don’t think these are important. But they are not the subject of today’s talk.  In this talk, I want to look at the big picture. In this picture, Trump is merely a symptom. He is a symptom of a serious problem with our political and constitutional system.

Because Trump’s method is to provoke outrage and fluster his opponents, many people have wondered whether we are currently in some sort of constitutional crisis.  We are not. Rather, we are in a period of constitutional rot.

By “constitutional rot,” I mean the decay of features of our system that keep it a healthy republic.  Constitutional rot, which has been going on for some time, has produced our current dysfunctional politics.

Constitutional dysfunction isn't the same thing as gridlock—after all, the three branches of government are currently controlled by the same party. Rather, it is a problem of representation. Over time, our political system has become less democratic and less republican. It is increasingly oligarchical.

By “democratic,” I responsive to popular will and popular opinion. By “republican,” I mean that representatives are devoted to the public good, and responsive to the interests of public as a whole—as opposed to a small group of powerful individuals and groups. When representatives are responsive not to the interests of the public in general but to a relatively small group of individuals and groups, we have oligarchy.

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Tuesday, June 13, 2017

The Remedy in Morales-Santana (Again)

Mark Tushnet

At the risk of abusing readers' patience, here's another stab at explaining the remedy in Morales-Santana, provoked by Will Baude's observation that no one, including him, shares my interpretation of the judgment. As a preliminary, it's worth noting that Baude's comment has two peculiarities. (1) It doesn't even mention the sentence critical to my argument, and therefore provides no account whatever of the relation between that sentence and the judgment. (2) He offers two alternative (I think of them as fancy-schmancy) possibilities, one of which he says is inconsistent with his understanding of how federal courts work and the other of which attributes a lack of principle to the Court. But, my interpretation -- no matter who doesn't agree with it -- is consistent with how federal courts work and is principled. I would think that both of those features counted in its favor.

So, now to the truly "abusing the reader" part. Baude and others have worried over what portion of the Second Circuit's judgment was affirmed. In the Second Circuit the government contended that it was required by the statute to deny the citizenship claim. Put another way, the government's position was that it had no discretion to grant the claim. The Second Circuit's judgment can be taken to have two components. (1) It rejects the government's claim that it lacks discretion to grant the claim. (2) It holds that the government must grant the claim by acknowledging citizenship. The Supreme Court reversed component (2) of the judgment, and affirmed component (1). No doubt it's a little awkward to say that component (2) is the equivalent of saying "Every time you have discretion, you must exercise it in a specific way," but it's not incoherent. And by affirming component (1) the Court provides a legal -- principled -- basis for the interpretation I offer of the crucial sentence.

Another version: The Second Circuit reversed the BIA and remanded the case to it for proceedings consistent with the Second Circuit's opinion. The Supreme Court reversed the portion of the Second Circuit's judgment (not opinion) that directed the BIA to act consistent with the Second Circuit opinion, and affirmed the portion remanding the case to the BIA. But, what -- other than exercise whatever discretion it has -- is the BIA supposed to do on remand? If the BIA must deny the citizenship claim, the Court should have simply reversed the Second Circuit, which would have left in effect the BIA's prior denial of the citizenship claim.

One further point: The remedy the Court adopted -- the crucial sentence on how to administer the statute aside -- has been described as the "mean" remedy. I would have thought that Justice Ginsburg (or someone else who joined her opinion) would have had some hand-wringing rhetoric about how sorry they are that the law requires this unfair outcome (which really is unfair in this specific case) -- but the sentence on administering the statute makes hand-wringing unnecessary.

I eagerly await accounts of the outcome that make more sense of the two central matters on which I rely (the "affirmed in part" matter and the sentence on administering the statute to avoid gender discrimination). [But I'm getting on a plane in an hour and will be out of touch for the following eleven hours -- although, perhaps, some might say that I'm already out of touch.]

Monday, June 12, 2017

Effectively Mooting the Travel Ban Cases

Mark Tushnet

The Ninth Circuit has made it easier for the Court effectively to moot the travel ban cases, simply by denying the requested stay of the Fourth Circuit order. The Ninth Circuit has now given the administration the ninety days it said it needed to develop more stringent vetting procedures for visa applicants from the six nations covered by the ban. The ninety days expires in mid-September, before the beginning of OT 2017, and the administration didn't ask for an expedited schedule for oral argument. So, if the Court did what the administration asked, the case would be moot by the time the Court heard it.

Of course the justices might think that the Fourth Circuit was probably wrong but, to avoid mooting the case, could stay the injunction and set an expedited briefing and argument schedule. So, the Ninth Circuit's action does not itself moot the case, but it simplifies the Justices' legal-strategic calculations.

Did Morales-Santana (the person) Win or Lose in the Supreme Court?

Mark Tushnet

I've seen some comments that Morales-Santana the decision was a "good news, bad news" outcome for Morales-Santana the person. The good news is that his lawyer won the argument that the statute being challenged was unconstitutional; the bad news was that the remedy wasn't the extension of the shorter period required for citizenship to him. The effect of the Court's remedy is that Morales-Santana isn't automatically a citizen and so is subject to removal.

What follows might be way off, but my initial reaction is that that argument is incomplete, because it doesn't take account of the Court's statement that, pending a statutory revision, the "Government must ensure that the laws in question are administered in a manner free from gender-based discrimination." What could that mean? My (relatively uninformed) take is this: Where (a) the gender-based provision would have immediate legal consequences (as in triggering Morales-Santana's eligibility for removal), and (b) the law gives the government discretion in administering the law (for example, discretion to suspend removal), that discretion should be exercised in a way that would eliminate the legal effects of the gender-based discrimination. So, in short, if there's discretion to suspend Morales-Santana's removal, he should get to stay in the United States.

National Conference of Constitutional Law Scholars Conference Announcement


From Andrew Coan:

The Rehnquist Center is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16-17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

·         Jamal Greene
·         Aziz Huq
·         Pamela Karlan
·         Frank Michelman
·         Cristina Rodriguez
·         Reva Siegel
·         Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan ( For logistical questions or to register for the conference, please contact Bernadette Wilkinson ( The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

Conference Organizers
Andrew Coan, Arizona
David Schwartz, Wisconsin
Brad Snyder, Georgetown

The Rehnquist Center
The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

The Unspoken Message of our Bill of Rights

Gerard N. Magliocca

President Trump has still not mentioned the Bill of Rights as President. No President has gone so long into his first term without doing so since Dwight Eisenhower. (It took Ike more than a year to mention the Bill of Rights for the first time.) Why do I bring this up?  It's clearly a symbolic point that, I think, says something about his mindset about civil liberties.

In my upcoming book on the Bill of Rights, I talk at length about how the symbolic meaning of that idea has changed over the centuries. In this post, I want to discuss one part of that story. What is the lesson that we should take away from the fact that the American Bill of Rights is currently defined as the first ten constitutional amendments ratified in 1791?

I say "currently" because, as the book explains, for most of our history the Bill of Rights was not defined in this way. Indeed, the view that the Bill of Rights is the first ten amendments became did not become settled law until 1971. Justice Hugo Black left the Supreme Court in that year, and he was the last significant legal figure to insist that the Bill of Rights was NOT the first ten amendments.  (Sometimes he said it was the first eight amendments, and sometimes he said that other constitutional provisions beyond those should be included.)

One thought is that we call the first ten amendments the Bill of Rights because they are the most important constitutional provisions (or rights). But this cannot be right. What about the Fourteenth Amendment? Or the ones that expanded the right to vote? Are they really less important than, say, the Third Amendment or the Seventh?  Hardly. Or how about as compared to landmark statutes such as the 1964 Civil Rights Act, the Social Security Act, and so on.

A better explanation is that the first ten amendments are considered distinctive because they sort of come from the Framers (or, at least, from the generation of the Framers). Consider, though, what this implies. It implies that the greatest legal achievements that deserve a special title all occurred in the eighteenth century. Is that true? I would say definitely no. In effect, even those who reject originalism say "yes" (though unwittingly) by accepting the current definition of the Bill of Rights.

Would the law be different if the Bill of Rights was redefined? Not formally. Constitutional rights and statutes have the same formal authority whether they are in the Bill of Rights or not. But the informal authority of a legal clause is almost certainly enhanced by that special recognition. (Otherwise, why bother having such a title at all?) Would a case such as Shelby County have come out the same way, for example, if the Voting Rights Act was seen as part of the Bill of Rights? Maybe. But maybe not.     

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