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Online VRA symposium: The VRA meets the living Constitution

The following contribution to our VRA symposium comes from Luis Fuentes-Rohwer, Professor of Law and Harry T. Ice Faculty Fellow at Maurer School of Law. His work focuses on the intersection of race and democratic theory, as reflected in the law of democracy in general and the Voting Rights Act in particular.

The Voting Rights Act takes center stage once again, as the conservative Justices search for a fifth vote to weaken if not to strike down most of its special provisions as beyond the powers of Congress.  The cases are Shelby County v. Holder and Nix v. Holder.  I suspect that most of the commentators in this symposium and elsewhere will discuss familiar themes: congressional powers and legislative findings; the scope of the Reconstruction Amendments; the role of race in voting and public life.  In this space, however, I will discuss two different themes.  First, I will argue that the Court should be far more deferential to Congress in this area.  To argue about legislative findings and the strength of the record in support of the VRA is to focus on the wrong questions.  This should be instead a debate about institutional competence.  Second, I will show that the Living Constitution trope is not reserved for the liberal Justices.


Every time I think about the contemporary debate over the constitutionality of the Voting Rights Act, I immediately think about the prescience of Justice Brennan.  His exchange with Chief Justice Warren over the question of legislative findings in support of the Voting Rights Act is nothing short of remarkable.  In the first draft of his opinion, Chief Justice Warren explained that the congressional hearings had lasted nine days and the floor debate had lasted twenty nine days.  He underscored that the legislation was amply supported by the evidentiary record and by overwhelming congressional majorities.

But Justice Brennan sensed an important weakness in the draft.  In a memo to the Chief Justice, Justice Brennan joined the Court’s “really . . . fine opinion.” He still had many concerns, however, which he noted on the margins of his circulated draft.  In particular, he noted that, “[i]t seems to me one thing to summarize the facts put before the legislature, and another to do what the Chief seems to be up to in this [section]—accepting the Congressional findings because they correspond to our own.”  Brennan was also critical of the Chief Justice’s references to the process that led to the passage of the legislation: “Do we judge statutes by no. of witnesses[,] length of hearings[,] unanimity of vote? The Chief is judging the legislative product as if it were a judicial one.”  At the close of the first part of the draft, he asked: “In several places, like this one, the Chief comes close to writing this as if it were an advisory opinion. I think this might be avoided. Are we reviewing the sections, any more than we are the adequacy of the hearings?”  Justice Brennan’s questions are relevant to the contemporary debate over the scope of congressional powers under the Reconstruction Amendments.

Though Justice Brennan did not ultimately persuade the Chief, he had the better argument.  In the very next case, Katzenbach v. Morgan, the Court was forced to examine the constitutionality of Section 4(e) of the Act in the face of a barren evidentiary record.  We can only imagine the exchange between Brennan and his fellow Justices in conference.  Had the Court followed his advice, Morgan would have been a far easier case under a standard of rationality.  Instead, Brennan was forced to improvise.  Incidentally, the Court never again invoked the Morgan power.

As the Court once again examines the constitutionality of the Act, it will be forced to confront Brennan’s challenge.  The obvious question is whether our unelected, unaccountable judiciary should second-guess the work of Congress in this area.  History suggests otherwise, particularly when it comes to voting rights for minority communities.  It is Congress and not the Court that has played the lead and most consequential role in protecting the voting rights of minority communities.  Moreover, for those who want to strictly interpret the Constitution, Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment designate Congress as the primary institution for the protection of minority voting rights.


Shelby County and Nix will force the Court, and in particular the conservative Justices on the Court, to confront whether one can advocate for a muscular judicial response in this area while at the same time professing to uphold the principle of judicial restraint.  The tension between a muscular judiciary and judicial restraint as it applies to the debate over the constitutionality of the Act, and particularly over the use of race by state actors, makes abundantly clear that both liberals and conservatives believe in the living constitutionalism trope when it suits their purposes.

Consider, for example, to the early years of the Fourteenth Amendment, when the Justices could mold it to their liking.   Here is Justice Miller’s view, as penned in the Slaughterhouse Cases: “In the light of the history of these amendments, and the pervading purpose of them, . . . it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. . . .  If, however, the States did not conform their laws to its requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class will ever be held to come within the purview of this provision.” The Court endorsed this view seven years later in Strauder v. West Virginia.

Clearly, the understanding of the Reconstruction Amendments has undergone a drastic revision from the time of their framing to this day.  Consider, for example, Justice Thomas’s views about the constitutionality of vote dilution under the Voting Rights Act.  Rather than cite to history, the text of the Amendment, or the intent of the Reconstruction Congress, Justice Thomas offers us instead his own personal views about the harms that underlie vote dilution claims.  As he wrote in his concurring opinion in Holder v. Hall, “in resolving vote dilution actions we have given credence to the view that race defines political interest. We have acted on the implicit assumption that members of racial and ethnic groups must all think alike on important matters of public policy and must have their own ‘minority preferred’ representatives holding seats in elected bodies if they are to be considered represented at all.”  As a result, he wrote that “few devices could be better designed to exacerbate racial tensions than the consciously segregated districting system currently being constructed in the name of the Voting Rights Act.”

To be sure, he might be right as a matter of political theory, and he might also be right as a question of policy. But that should not be his job.  If the text of the amendment and the intentions of its drafters control the inquiry, the question should be whether state laws “discriminate[] with gross injustice and hardship against [African Americans] as a class.”  The answer to that question is clear.  What is also clear is clear that the meaning of the Fourteenth Amendment has changed from the time of its enactment.  This is the same text, the same framers, yet different meanings.  The Living Constitution knows neither party nor ideology.

If it were not otherwise, the VRA would not be in the crosshairs of the conservative Justices on the Court. Thinking about these issues, I am also reminded of Professor Kurland’s foreword to the Harvard Law Review.  He remarked: “The Court will continue to play the role of the omniscient and strive toward omnipotence.” We are all living constitutionalists now.




Recommended Citation: Luis Fuentes-Rohwer, Online VRA symposium: The VRA meets the living Constitution, SCOTUSblog (Sep. 10, 2012, 3:37 PM),