I’m not sure that I can put together a proper debate premise, but here goes.
This letter writer to the NY Times (Opinion | If the Country Changes, Does the Constitution? - The New York Times) implies that, by the NY Times interpretation, Justice Roberts seems to lay the foundation for overturning Section 5 of the Voting Rights Act. Apparently, Justice Roberts “remarked that the country has undergone a social transformation since the law was passed and that changing conditions may at some point justify overturning Section 5.” (that quote is from the letter, not from Roberts’ opinion.
(1) Is that what Roberts wrote?
(2) Doesn’t that seem to be the opinion of someone who agrees with the concept of a living constitution, at least sometimes?
(3) If so, does the fact that Scalia and Alito also signed his opinion also imply that they believe that the constitution is sometimes open to reinterpretation, or does the fact that the opinion sidesteps the constitutionality of Section 5 completely basically negate that?
I’m hoping some of the more erudite and informed constitutional scholars can help put me in my place.
Not necessarily. You can see Section 5 as being a recognition that parts of the constitution may appear in conflict with each other - the power of states to determine their own electoral processes, and the rights guaranteed to all US citizens based on equal protection, for example.
Now you don’t need to reinterpret the constitution to say that as society alters, a restriction on the power of a state through the form of supervision which might have been previously necessary to ensure equal protection may no longer be necessary. It isn’t like Roberts is saying that if the state starts to prevent black folk from registering to vote, there won’t be a federal remedy, but just that the automatic process is no longer needed (if section 5 is what I think it is).
Now I could rant for ages about how Roberts and Scalia et al actually have no problem with reinterrpeting the constitution whenever they choose, but I don’t think the letter writer is correct here.
Changed facts can cause changed applications of constitutional language. This doesn’t mean that there’s a “living Constitution;” it just means that the underlying factual aspects of the case have changed.
In this instance, at the time the law was passed, there was a “…proven existence of intentional discrimination so extensive that elimination of it through case-by-case enforcement would be impossible…” This was a factual finding in 1966.
Today, there is no such record made, and so the law doesnt’ have the factual underpinnings it did before. The Constitution and its meaning haven’t changed a bit.
To make an analogy (which I am shamelessly stealing from Michael Dorf): consider the Fourth Amendment’s probable cause requirement. When a person is arrested without a warrant, the Fourth Amendment has long been interpreted to require prompt determination from a neutral magistrate on the question of whether probable cause exists. But what is “prompt?”
In County of Riverside v. McLaughlin, the Supreme Court said that a probable cause hearing within 2 days (or longer if the relevant period included a weekend or a holiday) was “prompt.” Justice Scalia dissented, saying that the Fourth Amendment was understood at the time of adoption to incorporate common law, and at common law “prompt” meant “as soon as he reasonably can,” which in turn Scalia thought could not exceed 24 hours. He discusses how 24 hours is a more-than-sufficient time to get an arrested prisoner in front of a magistrate. He doesn’t explictly mention cars, but it’s a safe bet that he did not arrive at that figure by calculating the time a horse-drawn prison wagon would need to arrive at the courthouse from a distant part of the county. In other words, while the language and meaning of the words in the Constitution do not change, their application to specific facts may result in a changed meaning.
Would it have taken that long to get from one side of a county to another by wagon? The average county is something like 600 square miles, or 22 miles by 22 miles. At an average speed of, say, 3-5 mph for a fully laden paddy wagon or 10 mph for a buggy 24 hours still seems quite reasonable.
Well, when you’re crafting a bright-line rule, it seems to me you need to look at the outliers. In my state, Pittsylvania County, on the North Carolina border, is almost 1,000 square miles, and by being shaped somewhat narrowly, the linear distance is greater than what a squarish county might offer.
I’m no expert on horse-drawn transportation, but I spsuect 24 hours for a county that size might be a bit unreasonable.
The really interesting part of the decision in that case was that there is just tons and tons of obiter dicta, including all that stuff about the constitutionality of Sec. 5. They could just have easily gone straight to the statutory argument over the bailout provision, and having disposed of the case that way, then commented: “this being the case, it is unnecessary to address the constitutional arguments about Sec. 5.” So all that discussion is really a way of announcing to the world that a large majority of justices are ready to dispatch Sec. 5 constitutionally. :dubious:
I’m still having trouble understanding how a law can be considered constitutional today but unconstitutional in five years, by the same justices, just because society is changing. Isn’t that kind of constitutional analysis usually answered by “well, that’s the way the constitution reads – if you don’t like it, have an amendment passed.”
The law in question was enacted to vindicate the 15th Amendment. The Voting Rights Act isn’t part of the Constitution itself, but it does have to be constitutional. Section 5 requires certain states and counties to petition the federal government before they can change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting…". If these covered jurisdictions have reached the point where they’re no longer hindering the right to vote, then the federal government’s interest in maintaining these restrictions disappears.
The relevant change in constitutional law already happened, actually.
When the VRA was first upheld by the Warren Court, the majority wrote that, “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
This “any rational means” test would have foreclosed the Court second-guessing Congressional evaluation of the evidence of racial discrimination. Since Congress reauthorized the VRA in 2006, that would be the end of the story for the Court.
But in 1997, the Rehnquist Court overruled South Carolina v. Katzenbach in City of Boerne. In Boerne, the court said that statutes must be proportional and congruent to the constitutional violations Congress sought to prevent.
Just what this means isn’t yet fully clear. But one plausible interpretation is that if the frequency of constitutional violation decreases, then the kind of statute that is constitutionally justified must be proportionally less intrusive on state’s rights. Presumably this is the argument Roberts would make.
One major flaw in this argument is that the statute and constitutional violations are not independent variables. The very existence of preclearence is partly responsible for the decreased prevalence of racial discrimination in voting. It would seem to be a kind of crappy jurisprudence if we have to repeal important statutes every so often just to see whether they are still needed.
Ultimately though it is unfair to say Roberts is arguing for a Living Constitution. But I think it is equally wrong to say he’s just arguing the facts have changed. He is arguing that the facts have changed and he’s also arguing for a particular interpretation of Boerne.
I should very much like to see Justice Roberts throw himself whole-heartedly into a “living Constitution” frame of reference. I should also very much like to see Scalia nail his pecker to a tree, with about equal hope of realization.
