By Judith E. Schaeffer, Vice President, Constitutional Accountability Center (CAC). This guest blog is also cross-posted on the CAC's Text & History Blog.
Sometime in the next few weeks, the Supreme Court will issue what may well turn out to be the blockbuster ruling of this term -- its decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO). The plaintiff in this case, a small municipal utility district in Texas, is challenging the constitutionality of a critical provision of an iconic civil rights statute -- the Voting Rights Act of 1965, most recently re-authorized by Congress in 2006 (with a Senate vote of 98-0). Questions posed by the Court's conservatives during oral argument indicate that they are poised to agree with the plaintiff and strike down the challenged portion of the Act.
Today, Constitutional Accountability Center (CAC) released the second report in our Text and History Narrative Series, a report that could not be more relevant or timely, as it tells what is essentially the constitutional "back story" of the NAMUDNO case, and demonstrates that a ruling striking down a central portion of the Voting Rights Act would be an egregious departure from constitutional text and history. This is a story that progressives need to understand, not only to respond forcefully to such a ruling and help shine a light on the conservative activism of the Roberts Court, but also to help frame the upcoming hearings on Judge Sonia Sotomayor's nomination to the Court. A ruling that guts a core part of the Voting Rights Act would illustrate that the Court's conservatives are not willing to take the text and history of the Constitution seriously, and the need for Justices who will.
In NAMUDNO, the proper decision on the constitutional challenge to the Voting Rights Act will turn on the correct reading of the Enforcement Clauses of the Civil War Amendments -- the 13th, 14th, and 15th Amendments -- an area in which the Court has already gone far astray. With the ruling in NAMUDNO, the Court could make one of its biggest and most harmful constitutional errors in history.
CAC's new report, The Shield of National Protection, reveals how drastically a ruling striking down part of the Voting Rights Act would depart from the text and history of the Constitution. As The Shield demonstrates through a careful study of the text and history of the Civil War Amendments, the Reconstruction Framers intended the Enforcement Clauses to provide Congress with broad authority to guarantee, "by appropriate legislation," the fundamental rights secured by those Amendments, including the right to vote. Written against the backdrop of Dred Scott v. Sandford, the Supreme Court ruling that helped bring on the Civil War, these Amendments were ratified to change the balance of power between the States and the federal government and provide Congress with the tools to protect fundamental rights.