an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Justice Scalia’s majority opinion in yesterday’sInter Tribal Council case spoke primarily in a textualist idiom: it framed the case in terms of the purportedly simple question of how to read a very small number of words of statutory text; he even makes the obligatory citation to a convenient dictionary definition (of “accept”). On the constitutional question of whether the NVRA is within Congress’ power under the Elections Clause, Justice Scalia’s method was pretty ecumenical: a brief originalist invocation of some relevant framers, a structural/functional argument, and a pile of relevant precedents.
In contrast, Justice Thomas’ dissent spoke almost entirely in an originalist mode. It’s true that he briefly responds to Justice Scalia’s claims about precedent, but that’s not where the action is in this dissent. Primarily, Justice Thomas offers up pages and pages of analysis of the Constitutional Convention and the deliberate choice, in 1787, to leave it up to the states who would be qualified to vote in federal elections (see p.5-8), along with a related argument that the meaning of “Times, Places, and Manner” in 1787 was relatively narrow (see p.8-12)—that is, that the states retained control over most of the rules of federal elections. From this, Justice Thomas concludes that if the National Voter Registration Act (NVRA) really required all states to “accept” the federal voter registration form as sufficient, then the NVRA would be unconstitutional. The federal government, on his view, just doesn’t have the power.
Let’s suppose Justice Thomas is right that in 1787, all relevant constitutional actors would have agreed with him that states’ power to set voting qualifications was broad, and the federal role limited. This is not a big stretch. After all, as Thomas points out, at the founding “it would have been difficult to convince States to give up their right to set voting qualifications”; he cites Alex Keyssar’s book for a table of “18th- and 19th-century voter qualifications, including property, taxpaying, residency, sex, and race requirements.” That last one was key. Let us all concede: in 1787, the Constitution certainly did not give the federal government any power to tell the states they had to let black people vote. So, based on this history, we can clearly see that the federal role in elections must be narrow, and states’ powers broad.
You see the problem. This analysis seems to, shall we say, bypass a few important events that occurred between 1787 and today, events that are highly relevant to the question of the relative balance of power between states and the federal government in regard to the specific area of voting and elections. One might begin (but not end) with the events of 1861-70. How, if at all, should such post-1787 constitutional history affect our reading of the Elections Clause, a chunk of Constitutional text that was written in 1787? This question is just the latest iteration of an important, recurring question that looms behind many originalist arguments—particularly originalist arguments about federalism.
Justice Thomas has a simple answer to the question of how we should understand this subsequent history: We’re interpreting the Elections Clause (or has he prefers to call it, the “Times, Places, and Manner clause”); that text was there in 1787; end of story. Sure, there are differences between 2013 and 1787 in terms of the federal role in elections, but we can hive off those differences and cabin them to other clauses. As Justice Thomas puts it: “Congress has no role in setting voter qualifications, or determining whether they are satisfied, aside from the powers conferred by the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, which are not at issue here. This power is instead expressly reposed in the States.” (p.4-5).
That certainly ties things up neatly. We have seen major, sweeping constitutional changes in the nineteenth and twentieth centuries in the area of voting. But on Justice Thomas’ view, such changes should affect our reading of only those clauses of Constitutional text that come from those later eras. When we’re reading the words of the 1787 constitution, we should ignore all the major changes that came later.
A different view, and one I find more persuasive, goes like this. The federal system of 1787 is gone. It died on the battlefields of the Civil War. In that war, the states’ basic sovereignty, in the form of the right to secede and the right to enslave, was decisively curtailed. The old system of federalism was replaced with a different system of federalism whose contours are complex and still evolving, but which differs in fundamental ways from the federal system of 1787. The Civil War is hardly the end of this story. Just as a clear-eyed analysis of the current sweep of the Commerce Clause requires an analysis of the New Deal as well as the Civil War, a clear-eyed analysis of the current sweep of federal power over elections requires an analysis of the major post-Reconstruction expansions of federal authority over voting rights that include but are not limited to the “Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments” cited by Justice Thomas. Specifically (as I argue elsewhere) the expansions of constitutional voting rights in the twentieth century add up to a distinctive, and modern, constitutional regime in which voting is tied in a deep way to citizenship. Regardless of what any state might prefer, the federal Constitution now protects the voting rights of all adult citizens.
I understand why many conservatives do not like to acknowledge the sweep of the post-New Deal commerce clause, and indeed have spent the last 20 years fighting it and paring it back. The New Deal conflict is never entirely settled, and moreover, the New Deal involved no Article V Amendments. Acknowledging that constitutional change is possible without Article V Amendments is a challenge to much of the originalist project. Bruce Ackerman has a famous, brilliant argument that in fact we need to acknowledge non-Article V change if we hope to understand either the Founding or Reconstruction. But most originalists cannot accept this; it’s too destabilizing for their theory.
So that’s what makes the case of the Elections Clause especially interesting. Here we have an issue of federalism on which every originalist must agree that a great deal of constitutional change occurred in the nineteenth and twentieth centuries. You don’t need to acknowledge any amendment analogues, super-statutes, or non-Article V changes when you’ve got at least five straight-up Article V Amendments (leaving aside here Bruce’s powerful argument that the Reconstruction Amendments did not in fact satisfy the formal requirements of Article V). Everyone agrees that every one of the five Article V Amendments listed by Justice Thomas explicitly expands both federal constitutional rights and Congressional power in the sphere of elections. (And I think one might also add to that list the Seventeenth Amendment [direct popular election of Senators] and the Twenty-Third Amendment [presidential votes for Washington D.C.], each of which moves us incrementally further away from the old state-based election system, and each of which contains an additional express grant of Congressional power.) The question is whether all these Article V changes ought to affect our constitutional analysis of federalism and election law in a deep, structural way—or whether instead, we should treat each clause of text like a separate, hermetically sealed time capsule, so that subsequent constitutional changes might have independent meaning, but have no effect on the meaning of older bits of text.
Imagine, in other words, the Elections Clause in a time capsule, sitting safely underground beneath the battlefield at Antietam, placidly unaffected by any changes related to voting that may have arisen out of that conflict. It sits similarly underground as suffragists march and win, as the Civil Rights movement secures the Voting Rights Act that introduced tough and intrusive new constraints on the actions of state election officers and local registrars. Through all those changes and more, we are supposed to imagine an Elections Clause safely below ground (nevermind that it was being invoked and used by governments above) and ready for an originalist justice to open the capsule in 2013.
That’s one interpretive choice. It’s an approach that tends to keep Amendments narrow as well as isolated from one another. And it raises some significant difficulties. Most of the text of the Constitution still comes from 1787. If we are stuck interpreting all of that text without recourse to major subsequent constitutional changes, then we are stuck with a constitution with one foot permanently set in the concrete of a constitutional world that our actual political order has long left behind—a world without political parties, a world without modern conceptions of equal citizenship and human rights, a world deeply shaped by the need to compromise with slaveholders. This is not only normatively undesirable, but also, it seems to me, a rather fragmented and incoherent approach to interpreting a Constitution that includes both original text and subsequent changes.
In the twentieth and twenty-first centuries, the aesthetic of originalism has often been bound up with a desire to turn back the clock on the modern American constitutional order specifically in the area of federalism. This is in part a story of conservative politics. The “states’ rights” arguments of the mid-twentieth century—in kinder, gentler, form—fueled the wave of state sovereignty arguments conservatives on the Court were making by the 1990s. But the federalist revival cannot (and does not aim to) turn the clock back all the way. There is far too much water under the bridge—even if you acknowledge only Article V Amendments. And so the federalist revival creates all kinds of awkward questions about which clauses and principles to read as though they’ve been sitting in a time capsule since 1787, and which to read in light of subsequent developments. These are awkward questions about whether and how to accommodate the modern constitution, or instead to try to hive it off, as Justice Thomas plainly tries to do in the sentences quoted above, and risk leaving a hobbled constitution with one foot in the eighteenth century and the other stretching to touch the twentieth.
And so I find it heartening that Justice Scalia, the more faint-hearted originalist, doesn’t go in for any of this when it comes to the Elections Clause. Justice Scalia’s version of the Elections Clause is plenary and sweeping. It authorizes a degree of federal control over the procedures of elections that Justice Thomas points out is far from what anyone in 1787 had in mind. And perhaps Justice Thomas is right about that; I suspect he is more right than not. But in any event, he wrote only for himself. Justice Scalia, writing for the Court, has now dragged the Elections Clause into some degree of coherence and harmony with the constitutional changes of the nineteenth and twentieth centuries. This may be a deeper departure from originalism than Justice Scalia acknowledges. It’s also the sort of canny move that can help prevent originalism itself from appearing ridiculous and irrelevant to our modern constitutional order.