On my constitutional law exam this year, I invited students to comment on a quote from a scholar – Supreme Court Justice Antonin Scalia. What he said is worth considering in light of his gasp-inducing comment during the argument in the Voting Rights Act of 1965 case, Shelby County v. Holder: “Originalism seems to me more compatible with the nature and purpose of a Constitution in a democratic system. A democratic society does not, by and large, need constitutional guarantees to insure that its laws will reflect ‘current values.’ Elections take care of that quite well. The purpose of constitutional guarantees (especially those guaranteeing individual rights) is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable. Or, more precisely, to require the society to devote to the subject the long and hard consideration required for a constitutional amendment before those particular values can be cast aside.” This is Justice Scalia in his element. Originalism as protector of constitutional values against the vagaries of electoral politics. Requiring us to think “long and hard” before casting aside those foundational notions. And yet.
Responding to the fact that opposition to the Voting Rights Act actually had decreased over the years, to the point that even lawmakers from covered jurisdictions voted “aye,” Justice Scalia announced a different vision of the Constitution and democracy.
His explanation for growing support of the Act? “Perpetuation of racial entitlement…. Whenever society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
Even the most cursory of glances to the Constitution’s text suggests that Justice Scalia has this all wrong. And, even worse, the language the framers chose evinces a value deeply at odds with the Justice’s cramped interpretation of the Act.