Cross posted on Balkinization.

Justice Antonin Scalia has long been hailed as the most celebrated conservative defender of following the text and history of the Constitution, but today he seems more than willing to jettison – rather than follow – the parts of the document he does not like.  Only a few years ago, he derided the Fourteenth Amendment’s Privileges and Immunities Clause as junk.  Now, Scalia is aiming his sights on the Enforcement Clause of the Fifteenth Amendment, which expressly gives to Congress the power to “enforce” by “appropriate legislation” the Constitution’s ban on racial discrimination in voting. This week, during oral argument in Shelby County v. Holder, Justice Scalia argued that – no matter what the Constitution says – the Court could not “leave to Congress” protection of minority voting rights.  He boldly asserted that the Voting Rights Act and its renewals in 1970, 1975, 1982, and 2006 were nothing more than the product of “perpetuation of racial entitlements. . . . Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process.”   Because of this claimed deficit in the political process, Justice Scalia argued, “this is not the kind of a question you can leave to Congress.” 

John Hart Ely must be spinning in his grave.  The idea behind Ely’s celebrated Democracy and Distrust was that the Court had a constitutional obligation to “clear the channels of political change” and “facilitate the representation of minorities” – not obstruct and retard them.  This is an obligation that Ely rooted in the Constitution’s text and the fact that more Amendments are dedicated to protecting the right to vote than any other right.   “Extension of the franchise to groups previously excluded has been the dominant theme of our constitutional development since the Fourteenth Amendment, and it pursues both of the broad constitutional themes we have observed from the beginning: the achievement of a political process open to all on an equal basis and a consequent enforcement of the representative’s duty of equal concern and respect to majorities and minorities alike.”  Or, as Debo Adegbile put it during the Shelby County argument, “our right to vote is what the Constitution is all about.”  

In Scalia’s warped view, this is exactly backward – the Court’s solicitude should lie not with voters subject to state efforts to suppress and dilute their votes, but rather with poor state and local governments, who would not have to contend with the Voting Rights Act if only the political process worked properly where “racial entitlements,” such as our most iconic and successful civil rights law, are at issue.  It should be pretty obvious who gets the better of this debate.  While Ely’s point that the political process will not work well for discrete and insular minorities subject to rule by hostile, ruling factions goes all the way back to the Federalist Papers and finds abundant support in our nation’s long history of racial discrimination, Justice Scalia’s “phenomenon” of the “perpetuation of racial entitlements” seems a product mainly of his disturbingly fertile imagination.  One would expect more of a Justice who purports to be bound by the Constitution’s text and history.

Photo credit: NPR.