Ramesh Ponnuru in the NYT makes a provocative argument:
The debates on these issues are highlighting a deep inconsistency in the way my fellow conservatives approach race and the law. Many conservatives oppose Judge Sotomayor’s nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.
At The Corner and Bench Memos, lively debate:
He makes the straightforward argument that an investigation into the original meaning and intent of the Constitution and its amendments will not reveal a constitutional prohibition of race preferences. The Constitution simply does not demand colorblindness, says Ramesh. I find it an unlovely argument, not because it is poorly formulated or poorly written but because it might well be true. But as a firm believer that the something bad can be constitutional and something good can be unconstitutional (or unsupported by the Constitution) I shouldn’t be surprised when the Constitution fails to ratify my own philosophical preferences.
One thing that might be motivating Ramesh is his inclination toward judicial restraint as a principle of constitutional construction. That is, a principle concerning what should judges do when they confront a text whose original meaning is not entirely clear in its application today. Many conservatives believe that judges in this instance should defer to the electoral branches, which are more accountable to the people and better suited to policymaking. But this is not a preference for originalism. It is a preference for a relatively strong legislative power as against an assertive judiciary that would maintain strict constitutional limits on the affirmative powers of government.
Ponnuru responds to Dick:
Having said all that, I think this discussion brings up two related problems for originalists. The first is the lack of a really well worked out principles about the role of precedent. If part of the justification for originalism is that it constrains judicial discretion, that justification is undercut to the extent that there is discretion about whether to respect precedent. The second is that we are so very far away from the Constitution as originally understood, which makes the first problem much worse. How to get back to that Constitution, to the extent that we can or should, is a thorny intellectual problem even before it is a political one.
The problem with Section 5 of the Voting Rights Act is that it prohibits many state actions that are not unconstitutional (since it employs an “effects” test, and the Fifteenth Amendment prohibits only disparate treatment — actions taken “on account of race”). Indeed, its principal use these days is to require states to engage in disparate treatment, namely the racial segregation of voting districts by racial gerrymandering. In addition, Section 5 supplants state authority in matters committed by the Constitution to them and substitutes federal judicial and bureaucratic supervision instead (this could be justified if necessary to stop states from violating the Constitution, but as just noted Section 5 goes way beyond that). Finally, Section 5 applies to some states and not others, without any existing factual basis for doing so, which is likewise inconsistent with the Constitution’s federalist structure.
So, in reauthorizing Section 5 in 2006, Congress exceeded its constitutional authority. Striking it down would honor the Constitution’s text, and would not be judicial activism; upholding it would mean ignoring constitutional text, and would be judicial activism.
But on the constitutional question, Ramesh is right to raise doubts about whether, on an originalist reading, the Fourteenth Amendment “mandated a policy of strict colorblindness by state and local governments.” And Roger doesn’t really argue that it does mandate that, other than to ask “where in the Constitution’s text it says that white people have different constitutional rights than black people.” But the whole historical question is, just what sort of rights are we talking about when we say people are entitled to the “equal protection of the laws”?
Ramesh celebrates two much-beloved conservative principles — originalism and judicial restraint — as reasons to eschew Supreme Court review of two key civil-rights cases — Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO) (decided June 21) and the much-discussed case of Frank Ricci (and colleagues), firefighters in New Haven, Conn., who were denied promotions because not enough minorities scored well enough on the qualifying exam. Yet neither originalism nor judicial restraint justify turning a blind eye to serious constitutional violations.
NAMUDNO is Ramesh’s exhibit number one, and I confine my remarks to that case.
Not even Justice Clarence Thomas, he writes, discusses “any historical evidence about what the ratifiers of the 15th Amendment intended.” He finds it “hard to believe” that framers in 1870 wished “to empower courts to determine which voting rights laws were necessary.” Congress is the proper body to make that judgment, and, in Ramesh’s view, its overwhelming vote in 2006 finding preclearance to be still necessary should be honored.
Where to begin? Yes, the 15th Amendment explicitly gave Congress enforcement power. But the framers did not write into the Constitution mindless populism. By Ramesh’s reasoning, it was wrong for the Court even to have reviewed the constitutionality of the act in 1966 (South Carolina v. Katzenbach). It had no business second-guessing the congressional determination that a deeply radical law to enfranchise southern blacks was necessary.
Let’s be clear: From the outset, the 1965 Voting Rights Act was constitutionally daring, unprecedented legislation. It demanded judicial review. The act suspended literacy tests in one region of the country, even though as recently as 1959 the Court had upheld the right of states to screen potential registrants for their ability to read and write. But such tests, as administered in much of the South, were totally fraudulent, and Congress banished them — in one region of the nation only. (The prohibition was subsequently extended to the nation as a whole and made permanent.)
Ponnuru responds to all:
I am not quite sure what Roger means when he calls my op-ed “ill-timed,” but the rest of his points are clear enough. First, he asserts that the Voting Rights Act goes beyond the Fifteenth Amendment and thus supplants authority that the Constitution leaves to states. Maybe so, but where’s the historical evidence?
Second, Roger reiterates his view that “courts determine facts all the time” and depending on will apply legal standards in different ways. Nobody disagrees with that claim. But there are two other things to remember. The first is that the Court is not just finding facts, but deciding whether those facts justify certain policy responses—which is a quintessentially legislative judgment. The second is that nobody has yet presented an originalist grounding for the constitutional standard being applied.
Third, Roger notes that Ricci has a statutory claim as well as a constitutional one. I didn’t comment on it. Note that I said that we shouldn’t leap from the unfairness of Ricci’s treatment to the conclusion that he should win his case. I didn’t say that all of his legal claims deserved to lose.
Fourth and last, Roger suggests that Ricci’s treatment straightforwardly violated the state’s obligation to provide all persons with the equal protection of the laws. Again, he supplies no originalist analysis to back up this contention. Roger and his organization, the Center for Equal Opportunity, do fine work on racial issues. I just think less of that work should be done in court.
Anthony Dick responding:
I’m glad to hear Ramesh agree that originalists who assert the unconstitutionality of the Voting Rights Act aren’t necessarily guilty of any deep inconsistency, since he’s unsure exactly what the original meaning of the 15th Amendment is. I agree, too, that further originalist analysis on this point would be welcome. I would note, however, that the best evidence of the Constitution’s original meaning is the plain language of the text. And the plain language of the 15th Amendment, which merely empowers Congress to enforce a ban on racial discrimination in voting, requires a severe amount of stretching to accommodate the sweeping federal imposition that is Section 5 of the Voting Rights Act.
From other blogs ’round the sphere:
Damon Root in Reason:
Judicial restraint, as Ponnuru puts it, “is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments.” Ponnuru calls this a “virtue” and, until relatively recently, most conservatives would have agreed. But as he notes, conservatives do not want the Supreme Court to defer to the judgment of local officials in New Haven, Connecticut, where a white firefighter named Frank Ricci saw his test results for an officer position thrown out because black applicants scored poorly on the same test. Ricci sued and the Supreme Court will be offering its decision fairly soon. But why—goes the argument for judicial restraint—impose a federal solution to a local problem? In other words, isn’t Sotomayor’s 2nd Circuit vote to uphold New Haven’s decision perfectly consistent with conservative judicial principles?
Teacherken at Daily Kos:
First, I think the entire approach of “originalism” is more than a little flawed. I have always found it ironic that members of the Federalist Society hold up as their hero John Marshall, who while a Federalist, was hardly one easily categorized as either a strict constructionist or one who used loose/broad construction in his interpretations. Certainly his insistence on the constitutional limitation of original jurisdiction in declaring part of the Judiciary Act unconstitutional in Marbury seems on its face to be strict constructionist. But that is the only case during Marshall’s long tenure that an act of Congress was declared, even in part, unconstitutional, the next such ruling being that of Taney with respect to the Missouri Compromise in the Dred Scott case. In fact, one might well argue that some of his other rulings, such as his interpretation of both the Commerce Clause in Gibbons v Ogden and the elastic clause in McCulloch v Maryland are sweepingly broad. A Federalist believing in the importance of the powers of the national government would certainly support both, but I doubt the argument could be made either on the basis of originalism or strict interpretation of the text.
Bob017 at Free Republic:
What Ponnuru is saying is that conservatives are relying on the anti-originalist, liberal perversion of the Fourteenth Amendment, under which federal courts bar any kind of racial discrimination at the state level. He’s saying that under the original Fourteenth Amendment, states could discriminate as they liked. Therefore conservatives, insofar as they are originalists, have no grounds for attacking New Haven’s anti-white discrimination practices. But Ponnuru, in addition to his Benedict Arnold-like behavior of going to the Times to attack conservatives, is mangling the issue. Under the original Fourteenth Amendment, as enunciated in the 1896 Plessy v. Ferguson decision and followed in many other decisions for 60 years after Plessy, the Constitution allowed states to have “separate but equal” racial arrangements, such as separate train coaches or separate schools for whites and blacks, so long as the separate facilities were equal. However, as I have argued (“Does Grutter violate the Fourteenth Amendment?”, VFR, August 2003), the original Fourteenth Amendment would clearly prohibit “together but unequal” arrangements, such as admitting people of two different races to the same institution under grossly different standards for each race, which is what we have under minority racial preference systems. Such practices violate the Amendment’s mandate that states shall not deny to any person the equal protection of the laws.
UPDATE: Roger Clegg