The Cato Institute and Constitutional Accountability Center don't always agree politically, but we both pride ourselves in following where the Constitution leads. Several years ago, that led us to argue together for the enforcement of the right to keep and bear arms against state laws. It leads us this week to file joint briefs in the landmark Supreme Court cases on marriage equality. For us, these cases aren't a matter of politics or ideology; they are a fight for the true meaning of one of America's most sacred constitutional rights.
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Shelby County should be an easy case. The Constitution's text expressly gives to Congress the power to enforce the Constitution's prohibition against racial discrimination in voting, arming Congress with substantial power to ensure that our most precious fundamental right is enjoyed by all Americans regardless of race. The Supreme Court has repeatedly upheld this very act, and the record developed by Congress shows that racial discrimination in voting is still a blot on our Constitution's promise of voting equality. The question now, as the justices hear oral argument, is whether the Roberts Court will follow the Constitution or subvert it.
Predictions based on oral argument are a risky business, but after this morning it is fairly safe to say that the outcome of Shelby County will hinge on how the Justices answer the question Justice Elena Kagan asked toward the end of argument: who gets to decide when the problem of racial discrimination in voting is solved? Because I think most Americans would recognize the reality that voting discrimination is still a problem, I would rephrase slightly: who gets to decide how best to go about solving the problem of voting discrimination? As Solicitor General Don Verrilli repeatedly emphasized this morning, the Constitution expressly grants Congress the power to enforce the constitutional guarantee of the right to vote free from racial discrimination. Not the courts. Not Shelby County, Alabama, of all places. Not even Justice Kennedy.
It is not the Supreme Court’s job to second-guess Congress’s decision. The Constitution unquestionably gives Congress the authority to determine how best to protect voting rights through “appropriate legislation.” In the wake of the Civil War, the framers of the 15th Amendment were reluctant to leave the courts with sole responsibility for protecting against racial discrimination in voting — unsurprising, given that the amendment was drafted and ratified just a few years after the Supreme Court issued the infamous Dred Scott ruling. How do we know that the 2006 reauthorization was “appropriate legislation”? Those 15,000-plus pages of evidence.
Obama's emergent constitutional canon appears bent on revitalizing a cornerstone of the Civil War era's—more unequivocally progressive—vision. Indeed, he seems already to have sparked an incipient dialogue around that prospect. By engaging the right on the meaning of the Constitution, Obama has broken new ground. For progressives, he has sketched a fresh template for countering their adversaries' long-unanswered constitutional narrative.