EPISTOLARY ARGUMENTS JUNE 25, 2013
We've asked TNR Legal Affairs Editor, Jeffrey Rosen, to debate with Michael McConnell, the former U.S. Court of Appeals judge and one of the leading conservative legal scholars, over the spate of decision expected this week at the end of the current Supreme Court Term. Today, they dig into the Court's 5–4 decision to invalidate significant parts of the Voting Rights Act. Watch this space, which we'll update as the two respond to one another's arguments. The exchange also appears on the website of the National Constitution Center, which Rosen leads.
To: Jeffrey Rosen
From: Michael McConnell
I do not think I would have joined this morning’s decision striking down Section Four (and effectively Section Five) of the Voting Rights Act, Shelby County v. Holder, even though I substantially agree with Chief Justice Roberts, writing for the majority, that the statutory coverage criteria are outdated. I also think that requiring state laws on the subject of voting to be precleared under open-ended criteria by an ideologized bureaucracy in Washington is a dangerous idea, susceptible to partisan abuse.
Why, then, would I not have joined? Two reasons.
First, the Fourteenth and Fifteenth Amendments assign the responsibility to enforce their provisions to Congress, not to the courts. Nothing in the text or history of those provisions suggests that the courts are entitled to second-guess Congress about when remedial measures are needed, and when they are not.
It is a bit ironic to see Justice Ginsburg trumpeting this point, when she joined the first-ever opinion of the Supreme Court engaging in this sort of second-guessing, City of Boerne v. Flores, in 1997. Justice Ginsburg does not explain why congressional statutes enforcing religious freedom are subject to judicial reexamination for “congruence and proportionality,” but a congressional statute enforcing voting rights is not. Justice Breyer dissented in Boerne—a tribute to his consistency. (Justices Scalia and Kennedy also were consistent, on the other side of the divide.)
Second, the majority relies on a supposed “fundamental principle of equal sovereignty” among the states, interpreting this to mean that Congress cannot treat states differently without rational criteria for doing so. This is a nice idea; it might be on my list of desirable constitutional amendments. But it is not in the Constitution we have.
Katzenbach v. Morgan explicitly held that the equal sovereignty principle “applies only to the terms upon which States are admitted to the Union.” That was a clear holding, in an iconic case. I do not believe the Court is rigidly required to comply with all precedent, but I do believe we are entitled to explanation when it does not.
More importantly, this “fundamental principle” is not to be found in the constitutional text. There are specific provisions requiring equal treatment of states, such as the one prohibiting any “Preference ... by any Regulation of Commerce or Revenue to the Ports of one State over those of another,” or the one stating that bankruptcy laws must be “uniform”—or even the neglected requirement of the Spending Clause that money may be expended only for the “general” welfare, as opposed to the sort of local projects Congress now feels free to fund. But there is no generalized equal protection clause for the states. It would be remarkable to read one into the Reconstruction Amendments, which after all were primarily designed to reform the dozen or more states that engaged in the rebellion.
Conservatives should be wary of reading specific prohibitions into generalized structural principles, just as liberals should be (but are not) wary of reading specific prohibitions into generalized notions of “liberty.”
That said, I am braced for hysterical and demagogic attacks on the decision, as if Bull Connor still roams the voting registration booths. The Court was right to find Section Four outdated. It is a pity this conclusion was reached in a constitutional decision where it did not belong, instead of by Congress.
To: Michael McConnell
From: Jeffrey Rosen
I’m mightily impressed, but not at all surprised, to read your principled, and intellectually consistent response to the Shelby decision. Not all of our readers will know that among your many accomplishments, you have written the most influential historical scholarship in the country arguing that the Framers of the Fourteenth and Fifteenth Amendments intended violations to be enforced by Congress, not the courts. In fact, although you’re too modest to note this, Justice Ginsburg cited your scholarship in her dissenting opinion today. Here is what she said:
It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments … See also McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997) (quoting Civil War-era framer that “the remedy for the violation of the fourteenth and fifteenth amendments was expressly not left to the courts. The remedy was legislative.”).
It’s true, as you say, that Justice Ginsburg was less deferential to Congress in the Boerne case involving federal protection for religious freedom, and it’s also true that other dissenters today were less deferential to Congress in other cases, such as Gonzalez and Carhart, another 5–4 decision where the liberals in dissent would have struck down the federal ban on partial birth abortions. I agree with you that these cases show that neither liberals nor conservatives today are consistent advocates of judicial deference to Congress. That should make critics of today’s decision less self-righteous about Chief Justice Robert’s penultimate paragraph quoting Justice Holmes on behalf of the proposition that “Striking down an Act of Congress is the gravest and most delicate duty that this Court is called on to perform.” The Court had “no choice” in this case, he continued, because Congress failed to take the hint and revise the coverage formula when first warned by the Court in 2009. “No choice” may be too strong, but it’s certainly true that neither side has a monopoly on Holmesian deference.
Still, I can’t resist one last point on the deference question. In the spirit of his concurring opinion in the Fisher case yesterday, Justice Clarence Thomas filed a concurring opinion today stressing that he would have gone even further than his conservative colleagues. He would have struck down Section Give of the Voting Rights Act, which requires federal preclearance for voting changes, not only Section Four, which defines the covered jurisdictions that need to seek pre-clearance. And that’s not the only part of the Voting Rights Act Thomas would strike down. He has signaled that he believes parts of Section Two of the Voting Rights Act are also unconstitutional, to the degree that they are construed to allow lawsuits against voting arrangements involving “vote dilution” that has a racially disparate impact, rather than a racially disparate purpose.
In this sense, some defenders of today’s decision who insist that Section Two is a perfectly adequate protection for voting rights—in other words, that it’s fine to challenge voting discrimination after the fact rather than stopping it from occurring in advance—are not being entirely candid. Given the right opportunity, they may join Justice Thomas in trying to challenge Section Two of the Voting Rights act as well. And if the Court accepts the invitation, it would be completely inconsistent, as you suggest, with the original understanding of the Framers of the Fourteenth Amendment who believed that it didn’t apply to political rights at all. Suddenly Justice Felix Frankfurter’s warnings in Baker v. Carr about the judicial activism that would result from the Court’s decision to enter what he called “the political thicket” are seeming more prescient by the day.
As a principled conservative defender of judicial restraint, you recognize all this, and for that please accept my admiration and gratitude.