Anthony Kennedy and Antonin Scalia Say the Confederacy Won the Civil War and the Purpose of the Reconstruction Amendments Was to Reinforce Rather Than Diminish State Sovereignty. (Except on Affirmative Action, the Second Amendment, and Real Estate Property “Takings.”)
Leaving race aside for the moment (did someone mention that the Voting Rights Act has something to do with empowering black voters – who just might, for some strange reason, prefer Democrats?), what the court’s conservatives seem to see in Section 5 is a threat to state sovereignty — the “sovereign dignity” of the states, a phrase Justice Anthony M. Kennedy has used in another federalism context. This theme ran throughout the argument. Justice Scalia referred to Section 5 as imposing “these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them.” Justice Kennedy asked whether “if Alabama wants to acknowledge the wrongs of its past, is it better off doing that if it’s an independent sovereign or if it’s under the trusteeship of the United States government?”— A Big New Power, Linda Greenhouse, The New York Times, today, discussing the Feb. 26 argument at the Supreme Court in a case challenging the continuing constitutionality of the Voting Rights Act
Just so you know, the main Reconstruction Amendment at issue in Shelby County, Ala. v. Holder, the Voting Rights Act case–the 15th Amendment–provides in full:
Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.Section. 2. The Congress shall have power to enforce this article by appropriate legislation.
That language in Section 2, giving Congress the “power to enforce this article by appropriate legislation,” is standard Constitutional Amendment language. It appears also in the other Reconstruction Amendment at issue in Shelby County–the 14th Amendment–a five-section amendment, the two relevant ones which read:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
John Roberts will write the 5-4 opinions in both cases. In Fisher, he and Kennedy will agree that the Union won the Civil War, and that the three Reconstruction Amendments–the third one, the 13th Amendment, actually being the first of the three; it abolished slavery–did not, after all, flip the Supremacy Clause in Article VI, Clause 2. It said (and the 5-4 Court majority will confirm in Fisher) still says:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
But Fisher was argued early in the Court’s term, in October, and probably will be decided before Shelby County. So Roberts & Kennedy & Co. will be able to clarify very quickly that–as Kennedy, Thomas and the others routinely and unselfconsciously, and without explanation–say, states are sovereigns. Not that states have some but not all the attributes of sovereigns; no, that states are sovereigns. And so, the Supremacy Clause notwithstanding, states need not comply with federal constitutional or statutory law. Except, of course, on issues important to 1980s-90s Republican White House, Justice Department and judicial appointees.
These folks have a list, and they are checking off each item on it, even when that means that in the very same Court term they’ll casually flip the Supremacy Clause back and forth. As it will this term. Christmas will come in May and June this year. Or at least Santa Claus will.
Federal trusteeships of states are, it will become clear by the end of this Court term, constitutional only when the trusteeship is of a state, such as Texas, whose legislature enacts a statute that butts up against a 1980s-’90s-era rightwing cause célèbre–a bullet point on the list. Federal trusteeships of states are clearly unconstitutional, however, when the trusteeship is explicitly authorized in the Constitution itself, as it is in Section 2 of the 15th Amendment, but the explicit authorization is itself on the list. That’s because, then, it turns out, that despite appearances–i.e., the language in the Amendment itself–the purpose of the 15th Amendment was not to make the states’ racial-minority citizens better off vis-à-vis the states, but apparently, as matter of historical fact, the opposite.
Who knew? Other than the Republican far-right, that is?
Not me, and probably not you. You probably learned, incorrectly, back in U.S. History class that the Reconstruction Amendments were added after the Civil War in order to make the states’ racial minorities better off vis-à-vis the states. But, then again, you also probably learned that the Confederacy lost the Civil War. Even those of you who went to upscale suburban schools or to fancy private ones. Well, those of you who took that class pre-1980s, anyway. But we’ll soon be disabused of that misconception, in a high-profile Supreme Court 5-4 opinion that will be simply the denouement of a decades-long juggernaut by a bizarre cadre of legal wingnuts who have gained a stranglehold on the American judicial system to deny that the Confederacy did not win the Civil War.
Sort of like the Tea Party congressional delegation’s decision to deny the result of last November’s election, but with no near-term reversal possible in 2014. Only an unexpected vacancy on the Court will do that.
Meanwhile, if Alabama wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government. Which is good, since Alabama surely will want to acknowledge the wrongs of its past. (Assuming, of course, that constitutional wrongs were committed in the past, which in this case presumes facts not in evidence at the Supreme Court on the day of the argument in Shelby County. Including the fact that that Section 1 of the 15th Amendment eliminated the concept that the right to vote is a racial entitlement.) I suggest a statue. And as an independent sovereign, which “it”–the intended beneficiary of the 15th Amendment–is better off as, Alabama might decide to erect one.