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Over the years especially recently and only a few days ago here, I’ve heard, seen and paid no attention to the declaration that the Constitution nowhere explicitly creates a right to vote.  Enough!

THE RIGHT OF CITIZENS…TO VOTE SHALL NOT BE DENIED OR ABRIDGED…[and] CONGRESS SHALL … ENFORCE…BY APPROPRIATE LEGISLATION.”  Articles of Amendment XV, XIX and XXVI (emphasis added).   These declarations refer to an extant right yea “entitlement” to vote on behalf of citizens of the United States.

In my civics classes in junior high school and high school as well as my constitutional law course in college, it was stated that amendments to the Constitution have all the dignity and force of law of the Constitution to which they are added, that is, they are the supreme law of the land.  In law school nobody ever bothered to mention that, but much study was given to that great body of law created by the federal courts pursuant to those amendments and most especially to the Fourth, Fifth and Sixth Amendments (though that may now have changed sadly).  Even Professordoctors Scalia and Roberts seem to accept this premise at least as to parts of the first two of those amendments.

That the national legislature is commanded by exercise of its judgment to enforce that right cannot be gainsaid (as courts in my day used to say).   The only question thus becomes whether the law is appropriate to the authorization, that is, does it address an impediment to the exercise of the right?  If it does, it is “appropriate.”  As the Court has stated many times, it cannot supplant Congress’s judgment with its own.  Nor does it matter that other means of redress might have been more or even as appropriate.  Stated even more simply, is the means adopted inappropriate?

As noted, Congress created a considerable body of evidence demonstrating the continued need for the renewal of this statute.  Unless one were comatose, a condition which even I do not claim afflicted  Justice Scalia or “this Chief,” the last election amply demonstrated the fact that the targeted states continued to require address by this Act.  Further, as Justice Sotomayor noted, the county that is the party to this suit has filth on its hands.  That other states acted to impede the exercise of the entitlement does not render the law inappropriate.  On the other hand, the Court conceivably could find that equal protection of the laws required that the law be uniformly applied throughout the nation.  As much as that would be appropriate, the mere suggestion likely would curdle the urine of the conservative Justices.  Nevertheless, as much as they might like to vitiate the specific provision and eventually the Act in its entirety, it is likely that one or more has to realize that it must not be done (that is not to say that he/they will act upon that recognition unfortunately).

Finally, it was hypothesized that Chief Justice Roberts could not bring himself to be part of a five/four decision voiding the Affordable Care Act.  If that played any part in his ultimate decision, perhaps it is just as likely that he would not want to be on the wrong side of history in this instance however much he might detest the law.  Moreover, should Justice Kennedy the ditherer decide to affirm the specific provision (whether out of some misguided concern for his place in history—a done deal, Your Worship!), I believe that Justice Roberts will join making the result six to three.  This is not a prediction because neither has the integrity we should have been assured at their confirmations.  It is at best a fantasy, but it seemed worth mentioning if only to tease.

Originally posted to shagnaski on Sun Mar 03, 2013 at 03:47 PM PST.

Also republished by Community Spotlight.

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