Alex Keyssar, as part of the Balkinization symposium on my new book, A Real Right to Vote:

It is with this backdrop in mind, as well as my own historical writing and twenty years of witnessing increasingly strident struggles over access to the ballot box, that I enthusiastically welcome Rick Hasen’s new book, The Real Right to Vote. (The book briefly recounts the story above.)  A clarion call to action fused with careful legal and political analysis, this is an important volume that makes a sober-minded and compelling case for a constitutional amendment guaranteeing the voting rights of American citizens.  Hasen argues persuasively that statutes alone are inadequate to do the job and, more disturbingly, that in recent decades the courts—most importantly, SCOTUS — have become unreliable protectors of democratic rights. He maintains that the presence of an amendment affirmatively guaranteeing the right to vote would de-escalate the “voting wars” of the last twenty years and greatly reduce the (ridiculous and wasteful) amount of litigation that accompanies elections in the United States. Putting a right to vote in the Constitution would tilt the scales in favor of the prospective voter.   I agree and applaud.

That said, several thoughts (or questions) come to mind.  The first is an historian’s question, prompted by Hasen’s observation that in recent decades “the Supreme Court has failed to be a broad protector of voting rights” and by his chapter detailing the cases and pronouncements that buttress his conclusion.  Few constitutional scholars or voting rights experts (or readers of this blog) will dispute Hasen’s point:  the Warren Court is a fond memory, something of a benign aberration in our constitutional history, and more recent courts have repeatedly given sanction to state laws that place obstacles in the path of prospective voters and limited the ability of the federal government to restrain such actions.  Hasen also fears – with good reason – that the current court, with its deeply conservative majority, may be willing to overturn other precedents (even “one person, one vote”) and do further damage to the meaning of “universal” suffrage.

None of this is news to people who work in the field. But can we also broaden the lens and ask why this has been happening?  Is it not a bit odd, even baffling, that the Supreme Court of a country that proclaims itself to be the world’s foremost democracy does not actively defend the democratic rights of its citizens?  The explanation does not (or cannot be presumed to) reside in the limitations of our elderly Constitution:  after all, it was the achievement (and method) of the Warren Court to recognize democracy as a core American value and to find in portions of the Constitution the rationales for making that value operational.  So why do recent courts think differently?  Are there core tenets of modern conservatism (or conservative jurisprudence) that necessarily override the value of democracy – and if so, what are they and how/why did they become ascendant?  (They are hard to find in decisions like Crawford v. Marion County or Shelby County v. Holder.)  Or is the posture of the court simply a reversion to an older form of conservatism, one that was distrustful of democracy, especially if the wrong people were voting?  An older form of conservatism that no longer speaks its quiet parts out loud – at least not in court.    

I raise this issue not to criticize Hasen’s appropriately focused and sober-minded book but to encourage all of us to seek deeper, broader explanations for the anti-democratic drift that now seems so evident in our country, to re-examine the links between developments in the law and what is happening in politics and society.   The somber backdrop of our history, which is filled with episodes when suffrage rights contracted as well as expanded, suggests that we should be alarmed, even outraged, by the willingness, if not eagerness, of judges to limit or constrain the exercise of the franchise. All the moreso because we are again living in an era of declining faith in democracy, as was true in the late nineteenth century when actions were taken that undermined democratic rights for many decades, in the North as well as the South.  It is precisely in such conservative, or reactionary, eras that we most need our courts to uphold democratic values; making that happen may require more than fixes to the Constitution, necessary as those surely are.      …