Conservative Constitutional Hypocrisy

Justices who say they stick to the text of the Constitution did nothing of the sort.

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Most reaction to this week's Supreme Court ruling on the Voting Rights Act will center on whether the court was right that the law (or at least its Section 5) is outdated. But under the approach long advocated by the court's majority that very argument is itself outdated.

The conservative vision of an unchanging Constitution – that means for all time what the Framers meant when they wrote it –  has triumphed on the court, in which case, it doesn't matter whether times have changed and the VRA is "outdated." If it was constitutional when adopted, it should still be constitutional today. In short, the VRA's invalidation by those who trumpet conservative values is really about just one thing: hypocrisy.

For years, conservatives have argued for a theory of constitutional interpretation called "originalism." Originalism asserts that a constitution must mean what its framers originally intended it to mean – at least until that constitution is formally changed through the required mechanism of amendment. Liberals, in contrast, tend to argue that a constitution must be a "living document" that changes and grows with the times. 

On this score, count me with the conservatives: I believe it's incoherent to assert that the nation's fundamental law can mean to us whatever we want, independent of what those who adopted it intended – and it's undemocratic to insist that a handful of unelected judges can impose such changes in meaning at their whim. You want the Constitution to remain up-to-date and change with the times? Amend it.

That view has triumphed on the court, and certainly within conservative political and judicial circles. Or so they say. But on the Voting Rights Act, they said otherwise – at least, when it comes to African-Americans. Or at least when it comes to African-Americans voting.

[See a collection of political cartoons on the Democratic Party.]

We all know why there's a VRA: states of the former confederacy (and some other jurisdictions, as well) spent a century after the end of the Civil War finding every way to keep black Americans from voting and from achieving representation in the halls of government. To end this, Congress enacted the VRA in 1965. Congress' authority to do so was based on the power granted it under the Fourteenth and Fifteenth Amendments, enacted in the wake of the Civil War.

Everyone knows why these amendments were enacted: to create equality of civil rights – and specifically voting rights – for blacks. It wasn't a general, all-purpose feel-good Rights For All initiative – it was a specific reaction to the Civil War, slavery and the centuries-long disfranchisement of Americans of African extraction.

It took many decades for its broad principle of "equal protection of the law" to be considered applicable to Chinese Americans, Native Americans, women and, in fact, all Americans – a development that Justice Antonin Scalia has consistently ridiculed as beyond the amendments' original intent. So we can all be pretty clear that the Reconstruction amendments were intended to protect the rights, specifically to vote, of African-Americans, specifically in states of the former Confederacy.

One other thing we can be sure of: the Reconstruction amendments, in a relatively rare act of constitutional specificity, clearly and unequivocally gave Congress the authority to do whatever it felt necessary to carry out the amendments' aims. Normally, this type of "textual commitment" is precisely what conservatives look for to insist that the courts should keep hands off and let Congress have its way.

[See a collection of political cartoons on Congress.]

Now, if you believe in "original intent" and an unchanging Constitution, the only question you need ask about Section 5 of the Voting Rights Act's targeting of jurisdictions with a history of discrimination against blacks – such as, say, the Confederacy – still today is: Have they changed any relevant section of the Constitution since 1965? And the answer is: No.