Bench Memos

Re: The Right, Race, and Originalism, Round Two

In response to Ramesh, it’s not quite right to say that no Supreme Court justice reads the Fifteenth Amendment as causing problems for the Voting Rights Act. All nine justices in this week’s NAMUDNO opinion noted that the Voting Rights Act raises serious constitutional concerns in light of its sweeping intrusion on the state supervision of election processes, with no clear link to preventing racial discrimination in voting. As Tom Goldstein explains, “The decision unambiguously served notice that the Justices are prepared to invalidate the statute as it stands.” But in this particular case, the Court decided to take the route of constitutional avoidance, interpreting the Act to allow the plaintiff district to seek to bail out of the federal voting requirements imposed by the Act, thereby granting the prospect of relief to the district while dodging the larger question of the Act’s constitutionality. This course of action will give Congress time to amend the Act rather than relying on the Court to strike it down. But it doesn’t change the fact that one can argue quite plausibly that the plain meaning of the Fifteenth Amendment creates a strong presumption that the Voting Rights Act is unconstitutional, even before any historical inquiry gets started. I don’t think this is an inconsistent position for originalists to take, as long as they are open to historical evidence that might contradict plain meaning.

As far as the provisions of the Civil Rights Act that regulate private conduct, the Court upheld those back in the 1960s on interstate-commerce grounds, which is a whole ’nother can of worms, to use Jay’s favorite phrase.