Constitution Check: Is the right to vote an “entitlement”?

800px-University_at_Buffalo_voting_boothLyle Denniston looks at a provocative comment from Associate Justice Antonin Scalia about racial entitlements, and what it means in the broader scope of constitutional and congressional history.

The statements at issue:

There is “a phenomenon that is called perpetuation of racial entitlement. … Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. … I don’t think there is anything to be gained by any senator to vote against continuation of this act.”

 – Supreme Court Justice Antonin Scalia, comment from the bench on February 27, discussing the history of Congress’ repeated renewal of the Voting Rights Act of 1965.

“Entitlement: the feeling or belief that you deserve to be given something (such as special privileges).”

 – Merriam-Webster Learner’s Dictionary, in the second-listed definition of “entitlement.”

“We are talking about the enforcement power that the Constitution gives to Congress to make these judgments to ensure protection of fundamental rights. This is a situation in which Congress is given a power which is expressly given to it to act upon the states in their sovereign capacity.”

 – U.S. Solicitor General Donald B. Verrilli, Jr., responding to Justice Scalia at that hearing before the court last week.

“All men are … endowed by their Creator with certain unalienable Rights.”

 – The opening line of the Declaration of Independence.

We checked the Constitution, and…

It is extremely doubtful that, when James Madison sat down to compile what would become the Constitution’s Bill of Rights, that he thought he was dealing with handouts or gratuities that the government would generously provide for the people, but might later withdraw. It is also extremely doubtful whether the 40th Congress thought that when it passed what would become the 15th Amendment to end racial discrimination in voting–the amendment that Congress was enforcing with the Voting Rights Act of 1965.

Indeed, in Madison’s time, in the Founding era, virtually everyone in the national government knew that the Constitution would never have been ratified if the government did not fulfill the promise of the Declaration’s opening line about rights that were “unalienable.” From the beginning, then, the concept of civil rights has meant something very lofty, and probably permanent.

It might have been only an unfortunate coincidence that Justice Scalia last week belittled the Voting Rights Act as a “racial entitlement” on the day after the 144th anniversary of Congress’s approval of the proposed 15th Amendment.

But, leaving that aside, the justice’s comment raised the profound question of whether Congress, having once passed a law to enforce rights endowed by the Constitution, has the authority to change its mind and take back rights.

No legislation, of course, is beyond being repealed. It has long been an unbreakable rule that one Congress cannot bind a future Congress to maintain the same laws on the books. Times change, and laws that once were deemed absolutely necessary may become anachronisms–and, sometimes, embarrassments. There once was a federal law, the Fugitive Slave Act, that required the return of runaway slaves to their owners.  It had no use, of course, after the 13th Amendment abolished the institution of slavery.

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Justice Scalia’s use of the phrase “racial entitlements” was his assessment of the provision in the Voting Rights Act of 1965 that requires some state and local governments to get permission in Washington before they may put into effect any new election law or procedure. That duty was imposed on them by Congress, starting nearly a half-century ago, because those governments had persisted in denying the right to vote to minorities, and no other method seemed to work to put a stop to that.

From Justice Scalia’s perspective, that requirement is no longer needed, because he is persuaded that the condition that led to its passage no longer prevails, in the South or anywhere else in the country.  But does it advance an agenda to strike down that law to suggest that the only reason Congress has repeatedly re-enacted it, with rising majorities, is that it was simply a politically popular law that remains intact only because it would be too risky to vote against it?

There may well be a difference, and a truly profound one, between passing an ordinary piece of legislation–say, adopting an increase in the highway speed limit because roads are better–and enacting a statute that seeks to enforce a constitutional right. The former is a matter of convenience, the latter may well be a matter of protecting human dignity. As long as a right remains in the Constitution (and Congress has never repealed a constitutional right), there may well be an abiding right to keep enforcing it.

A constitutional amendment passed with the noblest of motives may well become a nullity if its enforcement lapses.  In fact, the 13th, 14th and 15th Amendments were rendered almost completely useless in the decades after the Civil War and Reconstruction, when the “black codes” emerged amid waves of blatant racial hatred.   In fact, even the courts joined in a process of turning those amendments into mere temporary “entitlements” that could be, in practice, withdrawn.

With a historical record like that, it may well be no surprise at all that Congress is unwilling to let a civil rights law be undone.  Just last week, for example, Congress chose to renew the federal Violence Against Women Act, a law that hardly could be dismissed as a mere “entitlement” for America’s women. It was, indeed, deemed necessary for their survival.

And the chances are very good that the renewal passed because many considered it not only the politically expedient thing to do, but simply the right thing to do. It might not be too much to say that it was the noble thing to do.

Even a civil rights law can have or develop defects, and Congress has the authority to fix those, and the courts have authority to strike them down if they turn into constitutional violations. But neither process, one hopes, is driven by a desire more lofty than currying political favor.


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