I have a piece up at the Prospect about George Will’s critique of Pam Karlan’s brilliant recent HLR Foreword. (Spoiler alert: Karlan is right!) One tell is that conservatives who claim to be upholding constitutional values against the democratic mob are reluctant to quote the actual text of the Constitution, preferring to rely on vague intitutions about what they think should be in the Constitution:
The Roberts Court, Karlan notes, has turned Ely’s idea on its head. Unlike the Warren Court, the Court has consistently expressed contempt towards duly elected majorities in the elected federal branches. But even worse, it has often stretched the law to defend interests that are already overrepresented in the political process. As a result, the rights of underrepresented minorities get left behind. Karlan cites Justice Scalia’s strange argument that Section 5 of the Voting Rights Act’s renewal through bipartisan majorities (which the Roberts Court appears poised to overturn) was a reason for the courts to be particularly skeptical. Will agrees with Scalia, asserting that “Congress, indifferent to evidence, continued to sacrifice federalism merely to make a political gesture.”
This is wrong in several respects. First of all, the relative effectiveness of the Voting Rights Act is a bad reason to rule it unconstitutional. Second, the very success of the Voting Rights Act in enfranchising racial minorities has resulted in a wave of vote suppression tactics at the state level. This backlash of disenfanchisment proves that the need for federal intervention has hardly vanished. (Will, in a column dripping with the same remarkable contempt for basic democratic values as the Roberts Court, strongly approved of vote suppression and argued that low voter turnout as healthy for democracy.) And finally, Will does not explain why precisely the Voting Rights Act has become unconstitutional. By citing vague concerns about federalism, he avoids citing the relevant Constitutional provision, which says that “Congress shall have power to enforce this article by appropriate legislation.” Basic democratic values suggest that it should be Congress that determines which legislation is appropriate to the task, not the courts.
One point made my Karlan that I didn’t get to is that Ely’s representation-reinforcement theory is a good way to understand the conservative war on standing. The Warren Court’s broader conception of standing is a way of democratizing enforcement — in William O. Douglas’s phrase, “can be vigilant private attorneys general.” As standing gets narrower, the enforcement (for example) of environmental regulations has to rely on either the overstretched EPA of a Democratic administration or the EPA of a Republican administration that has no interest in enforcing environmental regulations.