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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Section Five and the on-going canonization of the Civil Rights Revolution
My Holmes Lectures argued for a redefinition of the constitutional canon that expresses the fundamental conclusions of the civil rights revolution. I suggested that the canon should not only include super-precedents like Brown v. Board of Education, but landmark statutes, like the Voting Rights Act. It was this statute, more than any other, that represented the constitutional judgment of We the People of the civil rights era. See the history provided in Ackerman & Nou, Canonizing the Civil Rights Revolution, 63 Nw. L. Rev. 63, 97-110 (2009).
In my view, the principal business of the Court is to preserve the will of the People when reached during successful constitutional moments. It follows that the Justices should treat the VRA with the special respect owed to a landmark statute.
The Court’s decision today represented a test for my thesis – and I would say that Chief Justice Roberts’ opinion supports my general approach. Quite simply, if the Court had treated the VRA as a run-of-the-mill statute, can there be any doubt that the five conservatives would have struck it down?
No doubt whatsoever: invalidation was not only suggested by the Justices' comments at the oral argument, but by their genuine commitments to the dignity of the states, their notions of proportionality, and other principles of federalism.
And yet they have hesitated to apply their standard canons of constitutional interpretation. Why?
Because they recognized that the VRA isn't a run-of-the-mill statute, but a landmark in our constitutional development. Chief Justice Roberts' opinion makes no secret about the VRA's landmark status, but my theory of constitutional moments, and its historical application to the VRA, helps excavate the sources of Robert's (reluctant) recognition that there really is something special about section 5. It vindicates his sober second thoughts, and his surprising turnaround from the aggressive line he was taking at oral argument.
To be sure, the conservatives haven't definitively recognized the legitimacy of the VRA. They have simply hesitated. Indeed, Roberts elaborates the reasons that the Five would ordinarily have struck down the statutory provision, but only to raise constitutional doubts, not to resolve them.
The Justices' anxious hand-waving shouldn't be taken too seriously. Assuming that Obama wins reelection, the liberal side will gain new vitality, and perhaps even a majority, by the time Section 5 comes up again. If Roberts and Kennedy don't have the courage of their convictions now, will they really lead the charge when the Obama justices are forcefully resisting, and legal momentum is on their side?
I doubt it.
Of course, all bets are off if Sarah Palin sweeps to victory in 2012.
But for now, my prediction can be summed up by the old maxim: "he who hesitates is lost." Section 5 of the VRA will be upheld by the Obama-Roberts Court in the fullness of time - maybe even with a mention of constitutional moments in a concurring opinion???
At any rate, you heard it here first - and I have no doubt that this blog will come back to haunt me if my crystal-ball gazing turns out to be wrong!