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Constitutional Illiteracy

E. J. Dionne is fretting that Obama’s Supreme Court pick won’t be treated fairly. I can assure him that whoever is selected will be treated more fairly than, say, Justice Sam Alito, who was raked over the coals by Ted Kennedy for alleged racial insensitivity or than, say, the numerous appellate court nominees over the last few years who were never given a vote by the Democratic controlled Senate. And he or she, “God bless, ya judge,” won’t have to answer the likes of Joe Biden. But then Dionne writes something particularly inane:

Opponents of [Section 5] say that while it may have been necessary when the Voting Rights Act first passed in 1965, a time when many Southern states openly discriminated against African-Americans, it is no longer needed.

But would it not be a form of judicial activism for the court to strike down an act of Congress that is 44 years old? Is it not a form of legislating from the bench for the court and not Congress to decide whether a law is outdated?

Thunk. In a word: No. If the court strikes down the Voting Rights Act it will be because it is enforcing the U.S. Constitution and the framework of federalism. It will be because the extreme intervention by the federal government in state and local elections under the Constitution is only justified to remedy actual voting discrimination, and if none exists (or does not exist in proportion to the degree of extraordinary Congressional intervention) there is no basis for micromanaging Section 5-covered jurisdictions. It will be because the factual predicate that existed in 1965, which justified this extraordinary intervention, is virtually absent in a nation where Barack Obama is President, Eric Holder is Attorney General, and hundreds of African Americans hold office at federal, state, and local levels. It will be because the job of the court is to strike down laws which conflict not with their roving sense of empathy, but with the text and meaning of the Constitution. (Let me assure Dionne that the Court does not decide when a law is “outdated,” but whether it is Constitutional.)

Really, liberals understand all this, don’t they? They understand the difference between, on one hand, transforming a policy preference into a “right” and, on the other, applying the language and meaning of the Constitution to strike down a law inconsistent with the same, right? The former is “judicial activism,” the latter is not. (Dionne might take a gander at Heller, in which Justice Scalia demonstrated what judges are supposed to do — strike down a statute if it is inconsistent with the meaning of the Constitution.)

Well, if Dionne and his fellow liberals really are this muddled, there is much to be learned by a Supreme Court confirmation hearing. It seems as if a refresher course on the role of the judiciary might be timely.



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