Joel Heller has posted this draft on SSRN (Hofstra Law Review). Here is the abstract:
In its most recent examination of the Voting Rights Act, the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of § 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “things have changed in the South.”
One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate § 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for § 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present.
This Article explores how Faulkner’s novels can contribute to a better understanding of the role § 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.