Perverting the Constitution for Power

Exclusive: The U.S. Supreme Court’s right-wingers are making bizarre arguments for gutting the Voting Rights Act, suggesting their real goal is to allow more suppression of minority voters and thus elect a Republican president who will keep the right-wingers as the Court’s majority, writes Robert Parry.

By Robert Parry

Official Washington’s boilerplate regarding the five right-wing justices on the U.S. Supreme Court is that they are “strict constructionists” who believe in a literal reading of the Constitution. But the reality is that these guys act as if they’ve never read the Constitution and have spent too much time watching Fox News.

For instance, Justice Anthony Kennedy, who is widely regarded as the “reasonable centrist” in this group, seems to believe that the Constitution made each state an “independent sovereign.” He used that phrase last Wednesday in oral arguments on whether to strike down the Voting Rights Act and especially Section Five, which requires jurisdictions with histories of racially motivated voter suppression to get federal court permission before changing their voting laws.

U.S. Supreme Court Justice Anthony Kennedy.

Kennedy expressed concern that this requirement violated the constitutional provision declaring each state, in this case Alabama, to be an “independent sovereign.” However, there is no such language in the U.S. Constitution. In fact, the Constitution intentionally expunged language about states being “independent” and “sovereign,” which appeared in Article Two of the Articles of Confederation as it governed the United States from 1777 to 1787.

The problems caused by that language led to the convening of the Constitutional Convention in Philadelphia in 1787. The idea of 13 “independent” and “sovereign” states had proven unworkable, so George Washington, James Madison and other Framers jettisoned it in favor of national sovereignty invested in “We the People of the United States.”

General Washington, who presided at the convention, was a particular foe of state “sovereignty” because he and his revolutionary soldiers had suffered under the chaos of 13 “independent” states failing to meet obligations to fund and equip the Continental Army. That chaos then continued through the first years of independence.

So, the Constitutional Convention ignored its instructions to simply propose amendments to the Articles of Confederation and instead threw them out altogether, including Article Two which read: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”

In the Articles of Confederation, national sovereignty was specifically denied the central government, which was not deemed a nation or government but simply a “firm league of friendship.” That power relationship was essentially flipped by the Constitution, which made federal law supreme and left the states responsible mostly for local matters.

Rewriting the History

The consolation prize that the states got was the Tenth Amendment which, in effect, replaced Article Two of the Articles of Confederation and must be read in comparison to that language of “sovereignty, freedom, and independence.” The Tenth Amendment simply states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Though the modern American Right has sought to make the Tenth Amendment a central governing principle – claiming that it tightly constrains the federal government and gives broad authority to the states – the amendment was really a rhetorical sop to the Anti-Federalists. It had very little meaning since the Constitution granted sweeping powers to the Congress and to the President, which is why the Anti-Federalists fought so hard to block ratification.

But the Right’s narrative of the nation’s Founding often ignores why the Constitution was written, i.e. to obliterate the failings of the Articles of Confederation. By deleting that key part of the story, the Right can pretend that the Framers were seeking a weak central government and were enamored of states’ rights, when nearly the opposite was true.

So, you’ll hear in the ubiquitous right-wing media this “scholarship” about how the Framers wanted the states to be “sovereign” and “independent.” But what was alarming about Kennedy’s remark is that it appears this bogus narrative has now seeped into the U.S. Supreme Court, where the right-wing justices seem to believe the Articles of Confederation are still in force. [For more on this history, see Robert Parry’s America’s Stolen Narrative.]

Kennedy is seeing language that is not in the Constitution. One has to begin to wonder if he is simply in thrall to the right-wing faux history, or is he just another political activist masquerading as a justice, eager to do what he can to insure that a Republican succeeds President Barack Obama and then will appoint new right-wing justices when some of the current ones retire.

In this apparent pursuit of a permanent right-wing majority on the Supreme Court, Chief Justice John Roberts presented his own sloppy reasoning for striking down Section Five of the Voting Rights Act. He claimed – without providing a source – that the proportion of blacks voting in Mississippi is much higher than the number in Massachusetts. Roberts called Mississippi the best and Massachusetts the worst.

But Massachusetts officials, including aides to African-American Gov. Deval Patrick, denied Roberts’s claim, and Supreme Court clerks declined to provide data to support the Chief Justice’s claim, which apparently originated in a dubious reading of Census data.

But the central flaw in Roberts’s argument — even if his numbers were right — is that no one is alleging that Massachusetts has a history of Jim Crow laws suppressing the black vote. Mississippi does. And it’s fair to say that the Voting Rights Act is a principal reason the black vote is as high as it is.

Voting as ‘Racial Entitlement’

Rounding out the right-wing justices’ efforts to transform the high court into what sounds more and more like a Fox News’ pundit panel, Justice Antonin Scalia threw in his cranky notion that the Voting Rights Act was a “perpetuation of racial entitlement,” suggesting that the right of blacks to vote was some kind of federal government handout.

Scalia, who is widely acclaimed by the mainstream media as a great legal intellect, apparently has little knowledge of the Fifteenth Amendment, which states: “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. The Congress shall have power to enforce this article by appropriate legislation.”

That would seem to make clear that Congress has the authority to exercise its judgment in protecting the rights of blacks and other minorities to vote, which Congress did in passing the Voting Rights Act in 1964 and overwhelmingly reauthorizing it as recently as 2006.

But now the right-wing clique running the U.S. Supreme Court seems ready to ignore the wording of the U.S. Constitution, to rely on some dubious data, to utter some inflammatory words, and to apply language from the inoperative Articles of Confederation to gut the Voting Rights Act and permit the restoration of Jim Crow laws.

Based on this anything-goes interpretation of the U.S. Constitution, these right-wing justices are now expected to at least strike down Section Five, thus clearing the way for Republican-controlled states to enact new ways to devalue the votes of blacks, Hispanics, Asian-Americans and urban white youth who embrace the nation’s multiculturalism.

One almost expected these right-wing justices to resurrect the “Three-Fifths of a Person” clause, which was repealed by the post-Civil War amendments ending slavery and asserting equal protection under the law. Why not? If they’re reaching back to the state “sovereignty” and “independence” in the Articles of Confederation, which was repealed by the Constitution, why not embrace the concept that whites are more of a person than non-whites?

The Court’s right-wing majority seems determined to do whatever it can to get another Republican president into the White House as soon as possible so their majority will be sustained, much as five Republican partisans installed George W. Bush after Election 2000, although he lost the popular vote and would have lost Florida if the Court had allowed all legally cast ballots to be counted.

However, as Bush’s fate and the Court’s Republican majority hung in the balance, five GOP partisans – including current Justices Scalia, Kennedy and Clarence Thomas – suddenly fell in love with the post-Civil War’s Fourteenth Amendment and its “equal-protection-under-the-law” principle. With Kennedy writing the majority opinion, they somehow twisted it into an excuse for not counting the votes of blacks and poor people.

That way a Republican was put into the White House and could fill Court vacancies, which Bush did in selecting John Roberts and Samuel Alito to replace William Rehnquist and Sandra Day O’Connor.

Now, by overturning much if not all of the Voting Rights Act, the Supreme Court’s Republican majority could clear the way for more suppression of non-white votes and thus increase the chances that a Republican president will be in place to ensure that the right-wing majority doesn’t slide into the minority.

[For a limited time, you can purchase Robert Parry’s trilogy on the Bush family for only $34. For details, click here.]

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).

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8 comments on “Perverting the Constitution for Power

  1. Bill on said:

    Supreme Courtesan Scalia Must Resign!

    …That is the preferred, but unlikely result of his recent remarks. It would be the most fitting outcome of his long disgraceful record of judicial activism.

    There is another way to put a limit on the damage of a crazed zealot on the bench: Term Limits.

    Every appalling utterance of Scalia restates the necessity for Term Limits for all Supreme Courtesans. Imagine if we simply had an 18 year limit for the Supreme Court in effect back in 2000. We would not have Rehnquist and O’Connor to tamper with the sanctity of the voting process – okay, some say “destroy democracy” as they refused to ensure all Florida votes were simply counted correctly. With the sweetest irony, O’Connor would have had to retire under a Democratic president, Bill Clinton. We all know her foremost wish was to retire under a Republican president, and thus she cast the deciding vote that ushered George W Bush into the White House. Term Limits = No Bush. Scalia and Thomas would also not be there to give us Citizens United. And we’d not be looking at Scalia and Friends salivating to eviscerate the Voting Rights Act.

    But you may correctly say, “That’s a two edged sword that can cut both ways.” Under a simple 18 year limit it’s true that one of our greatest liberal Associate Justices, Brennan, would have left the bench in 1974. But I’d add: Any ex-AJ could be nominated again, and I could see Carter putting Brennan back on the court during his term! I can’t imagine the Courtesans Scalia or Thomas being nominated AND approved for a 2nd term. (a sad footnote: Unfortunately Carter did not have the opportunity to nominate any AJ. 18 term limits would have given him and every president a chance to put justices onto the bench.)

    The idea is not new, some in depth info is available to spur a call to action:
    http://epstein.usc.edu/research/supctLawCalabresi.pdf
    and
    http://www.amazon.com/Reforming-Court-Limits-Supreme-Justices/dp/1594602131

  2. RogerClegg on said:

    Here’s why Section 5 of the Voting Rights Act is bad policy, outdated, unconstitutional, and ought to be struck down by the Supreme Court: http://www.pacificlegal.org/opeds/Overturn-unconstitutional-Voting-Rights-Act and
    http://www.nationalreview.com/bench-memos/341443/two-points-ishelby-county-v-holderi-roger-clegg

    What’s especially ironic is that the principal use to which Section 5 is put today is forcing jurisdictions to create and maintain racially segregated and gerrymandered voting districts – which is completely at odds with the original ideals of the Civil Rights Movement.

    There are other federal laws available to protect the rights of voters, and they don’t raise the problems that Section 5 does.

    Quite a bit is being made — starting with Justice Sotomayor at the oral argument — of Justice Scalia’s statement that Section 5 of the Voting Rights Act is likely to be reauthorized by Congress in perpetuity because that’s the way it is with all “racial entitlement” programs. The transcript of the oral argument is available here: http://www.scotusblog.com/2013/02/todays-transcripts-153/ – Justice Scalia’s statement is on page 47, and Justice Sotomayor’s reaction to it on page 63.

    Pace Justice Sotomayor, I don’t think that Justice Scalia meant that the “right to vote” is a racial entitlement — duh. Rather, I think he was adverting to the fact that Section 5 guarantees not just nondiscrimination but, in key respects, special treatment on the basis of race. The most obvious is the creation and maintenance of racially identifiable districts — indeed, the principal use of Section 5 these days is to ensure this sort of racial gerrymandering and segregation, as Joshua Thompson and I discussed in a Bench Memos post earlier this week:
    http://www.nationalreview.com/bench-memos/341443/two-points-ishelby-county-v-holderi-roger-clegg

    More generally, as we also discussed, the combination of a preclearance requirement and an “effects” test guarantees that voting practices that have a racially disproportionate effect will be blocked, even if they further legitimate ends and are nondiscriminatory by their terms, in their intent, and in their application. All of this is fairly described as “racial entitlement.”

    • Tell it to the legislature. Article V gave Congress. not the Court power. to make election law. It is clearly a political question prohibited to the Court under the separation of powers fundamental to the Constitution.
      Even if these consideration were true, they do not justify a court striking down a federal statute enacted under Article V powers. Scalia’s demeaning of democratic pressure on Congress in renewing this law was appalling and in more democratic times would have been the cause of an impeachment motion.

  3. rosemerry on said:

    The RATS/KENNEDY cabal should all simultaneously resign for the good of the country. Anyone outside the US Homeland can see that the whole idea of appointing partisan judges who can stay till death on the SCOTUS, using lies, dishonesty,weird beliefs, receiving bribes (eg Clarence Thomas and his wife) and not being in any way legal experts, is ludicrous and can lead to the kind of cruel policies we have seen from WBush and Obama.

  4. literalist on said:

    The phrase “or to the people” in the 10th amendment is intriguing from a libertarian perspective. If certain powers are reserved “to the people” that means they are off-limits to any government. An expansive interpretation of that could lead to really interesting results.

  5. Randy Fritz on said:

    And, Mr. Parry, let’s not forget Amendment 14, Section 2, which does indeed allow Congress to discriminate against states, specifically those who make efforts to keep the vote from a group of people. No, during the entire Jim Crow era that section was never enforced, but it remains a part of the Constitution, no less valid for being ignored.

    Scalia will never resign. I am becoming more and more convinced, though, that he has acted in such a way, more than once, to warrant removal for “bad behavior.” The Republican-controlled House will never impeach him, I know, but that can change in time.

  6. F. G. Sanford on said:

    “Scooter” Libby, I hear, has had his voting rights re-instated by the Governor of Virginia. White collar felons are apparently immune from the voting restrictions placed on other crooks. If he was black or Hispanic, regardless of the insignificance of the crime, that would never have happened. “Scooter”, as I recall, had a hand in the Valerie Plame scandal, which actually compromised national security. In fact, it compromised national security much more so than anything Bradley Manning did. The law, in its equality, forbids both rich and poor men from begging in the streets, stealing bread and sleeping under bridges”. Welcome to the land of “equality”.

  7. “The Court’s right-wing majority seems determined to do whatever it can to get another Republican president into the White House as soon as possible so their majority will be sustained, much as five Republican partisans installed George W. Bush.” This is what leading constitutional scholar and Yale law Professor Bruce Ackerman accused the court of doing in his article The Court Packs Itself, The American PROSPECT, 48 (Feb. 12, 2001)http://prospect.org/article/court-packs-itself

    But Robert Parry is diminishing himself by claiming that state sovereignty was left behind with the Articles of Confederation. The brilliant innovation of the founders was to establish a nation with dual sovereign for the deliberate purpose of dividing power as a prophylactic against tyranny. One of the foremost indicators of this sovereignty was indeed the absolute power of the states over their own elections within the general framework of maintaining a republican form of government. Another was the sovereign immunity from private suit outside its own courts as protected by the 11th Amendment. If Parry would like to study the application of this amendment to protect the integrity of state elections from Supreme Court he could consult the textbook presentation at http://tinyurl.com/EI-Am2 and http://tinyurl.com/EAM-amicus.

    As these briefs show, better than attack the concept of state sovereignty, which in any event was clearly reduced for elections by the 15th Amendment, it would be better to attack the Court for its inconsistency. If Kennedy et al. think Alabama is sovereign enough to restore Jim Crow for its elections then why was Montana not sovereign enough to be able to enforce its law guaranteeing election integrity? http://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf