Arizona Files Suit Challenging the Voting Rights Act

The State of Arizona has filed a lawsuit challenging the Voting Rights Act.  The State argues that the Act is unconstitutional and that the State bears a significant burden in complying with the Act.  Luis and I are finishing an article on the Voting Rights Act.  In our view, the likelihood that the Court will strike down the Act is significant.  A few years ago, Texas challenged the Act, the Court ducked the question but signaled very strongly its view that the Act is on shaky constitutional grounds.  The only real question is whether the Court dare strike down one of the most iconic statutes ever passed by Congress.

Looking for a Few Good Conservative Constitutionalists

What is not to like about a constitutional conservative? This is a person, according to the Mount Vernon statement, who believes in five basic principles:

limited government based on the rule of law to every proposal.

the central place of individual liberty in American politics and life.

free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.

America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.

conservatism’s firm defense of family, neighborhood, community, and faith.

In a recent essay in the New York Times, Lincoln Caplan argues that the biggest challenge for those who wish to understand constitutional conservatism lies in "understanding what, if anything, it actually means." According to Caplan, some might call the slogan "vague" or "arrogant." However, "it would be shortsighted to dismiss this increasingly used rallying cry."

Caplan gets it largely right. The term "constitutional conservatism" does no substantive work, nor does it need to. It is a rallying cry, to be sure, but also a label. The good guys, those who agree with us about all that is good in the world, or all the things to which we ought to aspire as a nation, are constitutional conservatives. Everybody else, I suppose, is a constitutional liberal. Beyond that, the term is short on specifics.

For example, is Justice Scalia a constitutional conservative when he opposes race conscious measures as contrary to the equality principle of the Fourteenth Amendment, even if, as we very well know, the Reconstruction Congress did not pursue the colorblind principle as a guide to its own actions? Similarly, is Scalia a constitutional conservative when he rewrites the Voting Rights Act to his own liking, or when he enshrines a personal right to bear arms at the heart of his vision of the Second amendment?

I can't tell. And neither those who call themselves constitutional conservatives nor the Mount Vernon statement itself provide any answers.

But that is probably the point. The use of the “conservative constitutionalism” slogan is no different than the use of terms like judicial activism or strict constructionism. These terms are deployed as labels to signal one’s agreement or disapproval with a decision, but mean nothing. Scalia and Thomas are no more or less activist than Brennan or Warren might have been.

This is not to say that we should dismiss the term and those who now deploy it. I agree with Caplan on this point wholeheartedly. Rather, the question is, what is the intended audience? I think, in light of the recent election returns, that we know the answer to this question all too well.