krebscycle

The Constitution says that there is a process to  amend the Constitution and the amendments passed according to this process then “shall be valid to all Intents and Purposes, as Part of this Constitution”.

Article. V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

The 15th Amendment to the Constitution was passed under this formula and so now is, according the Constitution “valid to all Intents and Purposes, as Part of this Constitution”. The 15th Amendment  says:

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.

Then the Congress passed legislation to enforce article one. This legislation is called the Voting Rights Act.  The act was passed in 1964 and has been amended and reauthorized by Congress four times. It was reauthorized in 2006 by a huge majority and then signed into law by the President.

So here is Judge Anthony Kennedy today:

Kennedy most clearly displayed that sentiment when he put a portentous question to the federal government’s lawyer, Solicitor General Donald B. Verrilli, Jr.  It was a rather peculiarly worded question, but its thrust was very clear.  If Alabama wants to put up monuments to the heroes of civil rights, in order to “acknowledge the wrongs of its past,” the Justice asked, ”is it better off doing it if it’s an own independent sovereign or if it’s under the trusteeship of the United States government?” – See more at: http://www.scotusblog.com/2013/02/argument-recap-voting-law-in-peril-maybe/#sthash.pvwvnXGe.dpuf

Well, Judge Kennedy, the answer is that your ideas of the appropriate balance of State and Federal authority are all very nice, but the text of the Constitution says that the Congress can pass appropriate legislation to enforce the guarantee of voting rights. If you do not like that, you can run for office and advocate a Constitutional Amendment.  What you are not authorized by the Constitution to do is to decide that you strike down legislation authorized by the Constitution because you consider it bad policy

Scalia and Roberts comments are even worse. The Supreme Court of Bush v Gore and Citizens United continues to show that  there are no bounds to their determination to prevent people from voting for Democrats, no matter what Constitution, law, or precedent say.

When the Obama administration’s top courtroom lawyer rose to defend the law, Chief Justice John G. Roberts Jr. asked whether the administration thought “citizens in the South are more racist than citizens in the North.”

There is nothing in the 15th Amendment that supports the theory that the Supreme Court has any business asking a question like that. The Congress conducted hearings, debated facts, and adopted appropriate legislation to enforce voting rights. The Supreme Court is not supposed to second guess Congress on policy. Both the language and the history of the 15th Amendment show that it intends to give the Congress the responsibility of coming up with appropriate ways of enforcing the rights listed in section 1.

When Verrilli noted that the Senate had voted unanimously in 2006 to extend the law and its special oversight for much of the South, Scalia said he was not impressed.

“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” he said. “This is not the kind of question you can leave to Congress.” [LA  Times]

The vile racism and gross hostility to democracy in the first part of Scalia’s remark are so spectacular that the second part may escape notice. But look at the second sentence “This is not the kind of question you can leave to Congress."  And then let’s look at Section 2 of the 15th Amendment:

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

This is not a subtle legal question. Scalia has proclaimed himself, and not for the first time, to be in open rebellion against the US Constitution. But Scalia is part of a long tradition. The Supreme Court attacked the Civil War amendments in the 1870s and helped set the stage for 100 years of Klan terror and vote suppression.