A review of Deconstructing the Republic: Voting Rights, the Supreme Court, and the Founders’ Republicanism Reconsidered, by Anthony A. Peacock
Anthony Peacock, a political scientist and lawyer, provides a thorough account of the interactions between the modern Supreme Court and Congress on voting rights. This circuitous and complex history does not always make for easy reading, but it is an important and in many ways amazing story. It begins in 1962 with the “one person, one vote” decision in Baker v. Carr. Although Peacock does not see Baker itself as a threat to the founders’ republicanism, he argues that it set the stage for grave future harm by institutionalizing the notion that “the judiciary had the intellectual wherewithal to rationally reconstruct America’s republican institutions with a view to achieving greater political ‘fairness.'”
Putting this idea to work in construing the Voting Rights Act of 1965, the Court, according to Peacock, changed a law protecting ballot access into one aiming to achieve fair representation for certain minority groups. Subsequent amendments and interpretations have led to the present situation in which states and localities are required to assure adequate vindication of the putative interests of various racial blocs. This has resulted, argues Peacock, in congressional remedies that are not in fact aimed at intentional acts of discrimination or even at the acts of government at all. And these remedies require the government to group people into racial enclaves.
Relying almost entirely on Madison’s republicanism to describe the founders’ thinking, Peacock details how an activist Court and, to a lesser extent, Congress have undermined the Constitution’s original design. They have distorted the principles of the separation of powers and federalism, for example, and subordinated the true interests of the country to the satisfaction of specific interests of defined groups. They replace the Madisonian idea of individual rights against government with the notion of group rights to affirmative governmental entitlements. They inflame passions by making racial identity, rather than commercial interests, the central pivot of political conflict. Not to mention the distortions in the principles of separation of powers and federalism created by an activist Court and heedless Congress.
Despite what some—in this age of the administrative state and cynical politics—will view as his dreamy invocation of Madisonian republicanism, Peacock’s focus is not narrow. He recognizes that the Court’s voting rights program and multiculturalism more generally have deep intellectual roots, and he traces several of them back to German historicism and the American Progressive movement. Even within the arena of American constitutional law itself, Peacock usefully relates the voting rights decisions to cases dealing with affirmative action and Congress’s power to enforce the Civil War amendments. Still, his book raises a number of questions about judicial review in the modern era that it does not attempt to answer.
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One such question is the degree to which the Court’s remarkable performance on voting rights bears similarities to its decisions in other areas of constitutional law. In this regard, Peacock’s account of the voting rights cases certainly brings to mind the judiciary’s long campaign against school segregation. That struggle began with Brown v. Board of Education(1954), a landmark decision that was intellectually audacious but did not necessarily entail the judicial excesses that eventually occurred. The school desegregation movement, like the voting rights decisions, eventually lost its regional focus and became nationwide. Moreover, though in theory the busing decisions were limited by the requirement that the remedy correct intentionally illegal government acts, as a practical matter the decisions often presumed intent and were designed in large part to compensate for the acts of private individuals. More broadly, it is certainly possible that the kinds of harms to Madisonian republicanism that Peacock traces to the voting rights decisions are inherent also in many other areas of constitutional law. The Commerce Clause decisions, for instance, have permitted almost limitless national power, and the Establishment Clause cases may well have heightened religious conflict.
Peacock’s discussion of the congressional power to enforce the 14th and 15th Amendments likewise invites thought from a wider perspective. He suggests that the Voting Rights Act is ripe for a constitutional challenge because its protections today are not, as the Court requires, congruent or proportional to any constitutional violations. This assumes, reasonably enough, that the Court’s definition of Congress’s enforcement power is aimed at protecting the states from excessive national power. However, it is at least possible that the Court’s decisions in this realm seek primarily to safeguard its own increasingly exclusive power to interpret the Constitution. If so, a challenge to the Act would be futile since its expansive reach is consistent with and, indeed, responsive to prior judicial decisions.
These questions about the Court’s overall record and the influence of the Court’s view of its interpretive role point to another significant issue that lurks around the book’s edges. Why is it, as Peacock notes, that conservative justices like Antonin Scalia, John Roberts, and Samuel Alito have been so reluctant to reverse the Court’s dangerous course on voting rights? Although a full discussion of this would surely have taken Peacock beyond his chosen topic, he does provide the fascinating suggestion that the Court’s record is partially a consequence of “its symbiotic relationship with the voting rights bar and the academic community.” To the extent this is so, the underlying problem—which one would expect to extend far beyond voting rights—is professional and philosophical more than ideological.