In the oral debate over cutting down the power of the Voting Rights Act – the law designed to assure enforcement of no discrimination against minorities’ right to vote – Supreme Court Justice Antonin Scalia stated last month, “This is not the kind of a question you can leave to Congress.” He called the bill, “perpetuation of racial entitlement.” He added, “It is very difficult to get out … through the normal political process.” The Court could make a decision as early as June.
The Justice apparently missed that the 15th Amendment to the Constitution states, “The right of citizens to vote shall not be abridged by the United States or by any state on account of race, color, or previous condition of servitude.”
The extremely significant next sentence of the 15th Amendment states, “The Congress shall have power to enforce this article by appropriate legislation.”
Justice Ruth Bader Ginsburg was recently asked if Congress has the power to enact and amend the Voting Rights Act. She responded, “Yes, it’s there in the 14th and 15th Amendments.” To assure she meant the directness of her answer, she was asked if people are just wrong to say Congress does not have the power. She repeated, “It’s in the 14th and 15th Amendments.”
The 14th Amendment specifies that no group’s vote should be “denied” or “in any way abridged” and that if any state does so, the state’s congressional “representation shall be reduced in proportion” to the group’s voter reduction.
We asked former House Speaker Newt Gingrich last week if he still believes the Constitution gives Congress the power, since he had presided over and voted for extensions of the Voting Rights Act, and he said “Yes.” He asked us what we thought was Scalia’s reasoning to question it, and we told him about Justice Scalia’s assertion that Congress was politically pandering. Gingrich, unfazed, responded, “All the Founding Fathers won elections and understood that – they all were elected.” One may often disagree with Gingrich’s policies and politics, but as a congressional and constitutional historian, he is informed.
It’s not as though discrimination is dead and we no longer need the Voting Rights Act. After the Civil War and right through to 1965, many states enacted Jim Crow laws to try to subvert the freedom of former slaves and the right of African Americans to vote. That was what gave birth to the Voting Rights Act and its extensions. But the battle continues. In our time, in the 2012 election, thirty-seven states attempted voter suppression of minorities by targeted ID requirements and reduced hours to vote. Section 5 of the Voting Rights Act is Congress’s way to stop the undemocratic shenanigans denying minorities the vote.
The Voting Rights Act and its extensions have been among the most bipartisan and overwhelmingly supported votes in American history, including the 25-year renewal in 2006 by 98-0 in the Senate and 390-33 in the House.
Last month, the leaders of the Judiciary Committee that reported out the 2006 bill—Democrat John Conyers, Jr. (D-MI) and Republican James Sensenbrenner (R-WI)—issued a unique joint statement and filed a bipartisan “amicus” to the Court saying the Voting Rights Act with its Section Five “protects our most fundamental right—the right to vote. This law has empowered minorities to participate in the election process, but the threat of discrimination is not yet extinct.” The Judiciary Committee had taken 12,000 pages of testimony.
Congressman John Lewis (D-GA) said this month, “I gave blood, others gave blood, so that the rights of people can be protected.” It is unfortunate that Justice Scalia made his statement about “racial entitlements” on the same day, February 27, that Rosa Parks’ statue was unveiled in the U.S. Capitol.
There is a window. Perhaps Scalia’s earlier comment that “this Court doesn’t like to get involved in racial questions such as this one… that can be left to Congress” will be his better side and will be the Court’s attitude. The 15th Amendment says “Congress shall have the power.” However, if the Supreme Court knocks the law down or diminishes it, this should be one of those rare circumstances where the Congress effectively reverses the Supreme Court and reenacts the bill, perhaps changing a word or two so that it can say there is a difference.
Some weeks ago we went out and bought a little pamphlet for a couple of dollars with the text of the Constitution and the Declaration of Independence. The whole thing is about 1/20th a normal paperback novel’s length. You can read and circle phrases in it in an hour or two. There is much talk these days about the Constitution. Some people try to make it seem complicated. That’s just a way of keeping we the people from our power. There is also enormous biased usage of the wording. We want an informed electorate, and everyone should read it and even carry the small pamphlet around.
And that includes the Justices themselves.