Legal Commentary

Section Five and the on-going canonization of the Civil Rights Revolution

By Jack M. Balkin

My Holmes Lectures argued for a redefinition of the constitutional canon that expresses the fundamental conclusions of the civil rights revolution. I suggested that the canon should not only include super-precedents like Brown v. Board of Education, but landmark statutes, like the Voting Rights Act. It was this statute, more than any other, that represented the constitutional judgment of We the People of the civil rights era. See the history provided in Ackerman & Nou, Canonizing the Civil Rights Revolution, 63 Nw. L. Rev. 63, 97-110 (2009).

In my view, the principal business of the Court is to preserve the will of the People when reached during successful constitutional moments. It follows that the Justices should treat the VRA with the special respect owed to a landmark statute.

The Court?s decision today represented a test for my thesis ? and I would say that Chief Justice Roberts? opinion supports my general approach.

Quite simply, if the Court had treated the VRA as a run-of-the-mill statute, can there be any doubt that the five conservatives would have struck it down?

No doubt whatsoever: invalidation was not only suggested by the Justices' comments at the oral argument, but by their genuine commitments to the dignity of the states, their notions of proportionality, and other principles of federalism.

And yet they have hesitated to apply their standard canons of constitutional interpretation. Why?

Because they recognized that the VRA isn't a run-of-the-mill statute, but a landmark in our constitutional development. Chief Justice Roberts' opinion makes no secret about the VRA's landmark status, but my theory of constitutional moments, and its historical application to the VRA, helps excavate the sources of Robert's (reluctant) recognition that there really is something special about section 5. It vindicates his sober second thoughts, and his surprising turnaround from the aggressive line he was taking at oral argument.

To be sure, the conservatives haven't definitively recognized the legitimacy of the VRA. They have simply hesitated. Indeed, Roberts elaborates the reasons that the Five would ordinarily have struck down the statutory provision, but only to raise constitutional doubts, not to resolve them.

The Justices' anxious hand-waving shouldn't be taken too seriously. Assuming that Obama wins reelection, the liberal side will gain new vitality, and perhaps even a majority, by the time Section 5 comes up again. If Roberts and Kennedy don't have the courage of their convictions now, will they really lead the charge when the Obama justices are forcefully resisting, and legal momentum is on their side?

I doubt it.

Of course, all bets are off if Sarah Palin sweeps to victory in 2012.

But for now, my prediction can be summed up by the old maxim: "he who hesitates is lost." Section 5 of the VRA will be upheld by the Obama-Roberts Court in the fullness of time - maybe even with a mention of constitutional moments in a concurring opinion???

At any rate, you heard it here first - and I have no doubt that this blog will come back to haunt me if my crystal-ball gazing turns out to be wrong!

No pain, no gain.

Full post as published by Balkinization on June 22, 2009 (boomark / email).