This year’s gambit by the so-called conservatives on the Supreme Court to invalidate the Voting Rights Act may or may not succeed. If it does it will make a sorry mess for several reasons. The argument that states must be treated equally based on Article IV of the Constitution and the Tenth Amendment is ignorant, trifling, and unhistorical. States are guaranteed proportional representation in the House, equal representation in the Senate, and protection against foreign invasion. The Tenth Amendment is not revoked by the post-Civil War Amendments outlawing slavery; guaranteeing due process, equal protection of the laws, and the privileges and immunities of citizenship to all Americans; and guaranteeing the right to vote (though not yet to women)–but it is qualified and placed in a new light. The Thirteenth, Fourteenth, and Fifteenth Amendments all explicitly gave Congress “power to enforce…by appropriate legislation.” If that did not relativize the Tenth Amendment what would? Moreover the reentry of states that had seceded back into the United States was contingent on acceptance of the Reconstruction Amendments. It took another one hundred years after the abolition of slavery until the Voting Rights Act of 1965 was signed by President Lyndon Johnson. This law finally “shifted the advantage of time and inertia from the perpetrators of the evil to the victims,” as Chief Justice Earl Warren wrote in his 1966 Katzenbach opinion upholding the Voting Rights Act as a valid exercise of Congressional power to enforce the Fifteenth Amendment.
Section Five of the Voting Rights Act does not treat all states equally, which because of the history involved is not necessarily the same as inequitably. It constrains several Southern states, as well as Alaska, Arizona, the Bronx, Brooklyn, and Manhattan. Several towns in New Hampshire were recently allowed to “bail out” of the Section 5 “preclearance” portion of the law. Those towns had imposed poll tax requirements in the past. But the core impact of the Voting Rights Act was and is in the former Confederate states, where some have complained, sometimes accurately, that “we have repented, and we have reformed.”
Lincoln said in his second inaugural address that all knew that slavery “was, somehow, the cause of the war.” We all know that the issue now is whether the un-conservatives on the Court decide, against the near-unanimous voice of both houses of Congress, expressed repeatedly since 1965, that it is time for “happy forgetting.” Harald Weinrich, in his remarkable work Lethe:The Art and Critique of Forgetting, follows Freud in distinguishing between “unpacified forgetting” and “pacified forgetting.” For Weinrich the path from unpacified forgetting to a post-therapeutic pacified forgetting relies on the art of memory as a necessary auxiliary in the process of working through (pp. 132-36). And Paul Ricoeur, in his Memory, History, Forgetting, writes of an ars oblivionis, a happy forgetting, that could become a double of ars memoriae, happy memory (p. 412). But Ricoeur is “troubled by an excess of memory here, and an excess of forgetting elsewhere, to say nothing of …abuses of memory–and of forgetting” (p. xv).
Is this Supreme Court really best for the task, or up to the task at all, of judging “the just allotment of memory” (Ricoeur, ibid.) in this case? It is more than just another case. It might be best if they were a little less eager and sure of themselves here. When John Roberts informs us that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” he demonstrates an admirable grasp of tautological logic but probably an unsure sense of the complex history involved. Antonin Scalia, remarking on the lopsided vote to reauthorize for 25 years in 2006, said at the oral argument that the near-unanimity was evidence that this “is not a matter that can be left to Congress”! Is the bottom line here that the Court is going to invalidate the law that, warts and all, finally gave Americans of all races effective and real suffrage–on the ground of peevishness? Because Congress failed to jump after the Northwest Austin decision less than five years ago? They could just come right out and say: section 2 is good enough for you people, don’t even think that you deserve the advantage of time and inertia anymore.