Balkinization  

Tuesday, June 25, 2013

The Missing Amendments

Mark Graber


            From 1861 to 1865, the United States fought a civil war.  The outcome of the war were three constitutional amendments, military rule in the south, and numerous federal laws minutely regulating political procedures in the former confederate states.  The constitutional significance of the Civil War and Reconstruction remains a source of political and scholarly debate, but no one denies that something of great constitutional importance happened during the 1860s.  Until today.
            One of the most remarkable features of Chief Justice Roberts' opinion for the Court in Shelby County v. Holder is the almost complete absence of any reference to the Thirteenth, Fourteenth, and Fifteenth Amendments, the Civil War, or anything that happened during Reconstruction.  The only provisions the Chief Justice deemed relevant were the Necessary and Proper Clause of Article I and the Tenth Amendment.  In this new world, the Civil War and Reconstruction never occurred or, as the Dunning School maintained, they were blots on American constitutionalism that ought to be erased.  The Roberts opinion reads as if a new legal principle is emerging, later constitutional provisions are interpreted and modified in light of earlier provisions, rather than earlier provisions being interpreted in light of later provisions.  For a court that can spout originalism when the Second Amendment is on the table, the silence about the original meaning and practice of the Reconstruction Amendments is deafening (note how Jack Balkin caught the complete lack of references in Fisher to the race conscious measures the Reconstruction Congress passed at the same time the Fourteenth Amendment was framed).
            There are arguments to be made that the Voting Rights Act, at least at present, goes beyond the understanding of federalism underlying the Reconstruction Amendments, but surely those are the relevant texts and principles that must be analyzed.  Perhaps Justice Miller in Slaughter-House was correct when he stated that framing understandings of federalism survived the Civil War.  Nevertheless, the crucial issue in Shelby County should have been the extent to which the Constitution of 1868 incorporated 18th century notions of federalism rather than the majority’s apparent believe that their version of the Tenth Amendment, like state equality in the Senate, is immune from constitutional revision.
            Shelby County highlights another disturbing feature of contemporary American constitutional politics.  We celebrate Brown and regard the dead or dottering persons responsible for the destruction of Jim Crow as heroes.  Still, think of how few politicians have successfully gained office by claiming that they were for racial equality long before this was a cause embraced by every decent human being.  Think also of how many prominent figures held office who opposed Brown (or some other civil rights icon), and came to support that decision only when doing so was politically the only option and when Brown could be used as a weapon against other demands for racial equality.  So the judicial majority in Shelby County celebrates a voting rights act no member of which has ever read liberally as they now claim its time has past.

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