Liberals And Voting Rights

I expect, or at least hope, to have more to say presently about liberals and voting rights, but now I will discuss only one article by one liberal, Swarthmore political scientist Rick Valelly. James Taranto quoted a piece of it in an excellent Wall Street Journal column, and reading the whole thing convinced me that it was worth a post all of its own.

Shelby County v. Holder may not be dramatic or even so important as a matter of constitutional law — its holding that Congress may not discriminate against several states and political jurisdictions on the basis of demonstrably outdated and no longer accurate data, after all, would seem to be of little relevance or applicability to other controversies — but the response to Shelby is, I think, quite important as a revelation of the agitated and confused state of current liberal race thought and policy.

Here’s how Prof. Valelly’s article, “Is The Voting Rights Act Dead?,” begins:

Has the U.S. Supreme Court killed the Voting Rights Act? No—but with Shelby County, Alabama v. Holder, handed down on June 27th, the Court radically demoted the Act’s constitutional meaning. Once seen as a jewel on the crown of the Reconstruction Amendments to the Constitution, the 13th, 14th, and 15th Amendments, it has been reframed by Chief Justice Roberts as simply a sunset statute. The Court resurrected a long-forgotten premise, one that initially informed the Act’s enactment in 1965—that the Act is in principle temporary legislation because ordinarily, indeed quite properly in a federal polity, the states and not the national government regulate voting.

First, I have no idea — does anyone? — what “the Court radically demoted the Act’s constitutional meaning” means. What was the Voting Rights Act’s “constitutional meaning” before Shelby? In what respect was that meaning “demoted,” much less “radically demoted”? Perhaps all the professor means is that the specific provisions of the VRA at issue in Shelby were deemed constitutional until the Court held (by reframing them?) that they aren’t, but if so you’d think even a Harvard Ph.D. could find a way to say that in a less inflamed and, well, radically less obfuscatory manner.

Prof. Valelly’s piece is filled with pompous, alarmist rhetoric — “history tells us that we are at a crossroads in the evolution of American democracy” — but its only actual argument is that the Court made the unforgivable error if interpreting the Voting Rights Act according to what those who passed it intended and wrote. “The Court,” he wrote in a passage already quoted but that bears repeating, “resurrected a long-forgotten premise, one that initially informed the Act’s enactment in 1965—that the Act is in principle temporary legislation because ordinarily, indeed quite properly in a federal polity, the states and not the national government regulate voting.”

This is a classic statement of the liberal view that the meaning of a law (and, of course, the Constitution) is untethered from both its intent and actual terms. Well,  perhaps not so classic since Valelly’s version is not even coherent — what sense does it make to say that a premise “initially informed” an act’s passage? When else could it inform it? How can a premise that informed an act’s passage subsequently cease to have so informed it? Although Valelly never uses the term, it’s clear that he prefers what I’ve called on numerous occasions “construing liberally” to reading literally. (See  “Construed” Once Again…,  Construing Liberal Construing, Or: Construe You,  Construing the Construers,  Liberals vs. Conservatives: It’s A Matter Of Interpretation,  Interpretation: Reading Literally vs. Construing Liberally,  Perpetuity Isn’t Forever (If “Construed Liberally”)).

Here is Prof. Valelly, merrily construing:

The seeds for the current crisis were sown in 1965, when Congress first framed the Voting Rights Act as emergency, stop-gap legislation. The first extension of the Act in 1970 initiated the Act’s gradual institutionalization. But the Act’s foundational assumption was never completely replaced.

To be sure, everyone knew that some day African-American voting rights would no longer require federal protection. Yet it was taken for granted that the when and the how of such a decision were up to Congress. And certainly no one anticipated during the Act’s several renewals in 1970, 1975, 1982, and 2006, that the Supreme Court would step in for Congress. Congress and the Court instead worked in tandem, partners in an inter-branch dialogue, updating and implementing the many powerful provisions of the Act.

The Court’s conservative members thus shattered a distinctive inter-branch partnership. More or less stamping their feet, they insisted on the relevance of the Act’s foundational assumption, as if it were a pre-nup agreement to be hauled out of a safe deposit box after nearly half a century of marriage. What, then, is left amid the wreckage of the Court’s defection from the inter-branch partnership?

Really? Everyone knew that some day blacks would no longer need federal protection to vote? Does “everyone” still know that, or is that knowledge now “a long-forgotten premise, one that initially informed the Act’s enactment in 1965” but is no longer known? Prof. Valelly certainly gives no indication of when that day might be or how to tell when it arrives. The actual ability of blacks to vote in the formerly “covered” jurisdictions at the same rate or higher than voters in other “uncovered” jurisdictions is clearly not the measure, since he says nothing to refute Chief Justice Roberts’s recitation of current voting statistics. But never mind. Prof. Valelly may not say when “some day” will arrive or how we will recognize it, but readers of Discriminations know: it is that glorious day when the playing field becomes level!

” How will we know when it’s level?” I asked here. “Since I’ve yet to see an answer,” I continued,

I am hereby launching a contest (prize to be determined later) to see who can provide the most persuasive conclusion to the following sentence:

“The playing field will be level when ….”

To get the ball rolling, I will submit the first entry:

“… when the cows come home and the lions lie down with the lambs.”

And to what “current crisis” does Prof. Valelly refer? The only “current crisis” (aside, of course, from the fact that the Court has led us to “a crossroads in the evolution of American democracy”) that I can see is the Court’s “defection” from its collusion with past Congresses and presidents in ignoring the “foundational assumption” of the Voting Rights Act. It is unfortunate that the Court, and Justice Kennedy in particular, continues to participate in that illicit collusion by ignoring the “foundational assumption” of the 1964 Civil Rights Act. As explained by Justice Stevens in his powerful concurring opinion in Bakke,

Section 601 of the Civil Rights Act of 1964 … provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted.

After a decade on the Court, of course, Justice Stevens, having become a liberal on race issues, abandoned his earlier deference to the “plain language” and “actual intent” of Congress and joined wholeheartedly (if half-headedly) in the liberal construal project of, as Prof.Valelly celebrates in writing its epitaph, “updating and implementing the many powerful provisions of the Act” that the Congress, lacking the vision or courage of the pre-Roberts Court, failed to update.

Prof. Valelly, to whom History vouchsafes its liberal vision, is convinced that “[t]he Court’s conservative majority deliberately chose to forget” what “history tells us.” No doubt being on the right (which is to say, left) side of history is a great comfort to him, although it is perfectly clear to the rest of “us” that the reassuring murmurings he hears are not the lessons of history but of liberal historians.

The saddest aspect of Prof. Valelly’s analysis — and the reason I think it justifies the attention I’ve devoted to it — is not its substance, which is certainly sad enough, but the fact that it is not idiosyncratic. In fact, it is ubiquitous in the academy and out. Indeed, Prof. Valelly is not some newly minted Ph.D. out to make a name for himself by outrageously celebrating Courts, Congresses, and Presidents colluding to turn blind eyes to the “plain language” and “actual intent” of legislation. A Harvard Ph.D. with many accolades and professional honors, he is, as he is quick to proclaim on his own web site, “a recognized expert” on the Voting Rights Act.

That is what is truly sad.