The Congressional Black Caucus, Minority Voting Rights, and the U.S. Supreme Court

Introduction

Introduction “The glass through which black life is viewed by white Americans is inescapably befogged by the hot breath of history. True objectivity, where race is concerned, is as rare as a necklace of Hope diamonds.” —Hoyt Fuller In 1993, the Supreme Court held in the redistricting case of Shaw v. Reno that the Equal Protection Clause of the Fourteenth Amendment entitles all voters to a color-blind redistricting process. On its face, this decision is emblematic of the Court’s landmark decision in Brown v. Board of Education . Indeed, the Shaw decision was heralded as a pinnacle of objective, color-blind constitutionalism in the area of voting rights jurisprudence and as proof of the Court’s commitment to leveling the electoral playing ‹eld for all voters. Other observers lamented the decision as well-intended but profoundly misguided. In particular, the Congressional Black Caucus (CBC) feared that invalidating remedial uses of race—such as the creation of the majority-minority1 districts challenged in Shaw—would endanger the political power that blacks and other minorities had gained from the Voting Rights Act (VRA). Ironically, the Shaw decision put the caucus and the broader civil rights community (which is instrumental in promoting the concept of color blindness) in the position of objecting to color-blind voting jurisprudence, or at least to the Shaw majority’s concept of it. While this turn of events is relatively recent, con›icts over the role of race in the Constitution are not. Debates over color blindness, race consciousness , and equality are deeply entrenched in American law, politics, and society. The context of contemporary minority voting rights issues reaches at least to the Reconstruction era and the framing of the Fourteenth Amendment. From one perspective, that amendment sharply limits the use of racial classi‹cations in public policies, regardless of the intent behind such classi‹cations. Speaking very generally, those who endorse this position tend to be characterized as conservative. They also tend to be associated with an originalist interpretation of the Constitution —that is, close adherence to the text or to one’s understanding of the framers’original intent of the law when it was written, rather than the current context. Again speaking very generally, this type of constitutional interpretation tends in turn to be associated with judicial restraint, or deference to precedent. The Court majority in Shaw v. Reno is often seen as an example of this position. From an opposing perspective, the Fourteenth Amendment was intended not to exclude all uses of race but to prevent the use of racial classi‹cations that have the intent or effect of disadvantaging a particular group, especially those with a history of being disadvantaged. Continuing to speak generally, adherents of this position tend to be classi‹ed as liberal and as proponents of interpretivism—that is, a more ›exible reading of the Constitution that takes current contexts into account. Also generally speaking, interpretivists are typically seen as less beholden to precedent and thus as judicial activists. The dissenters in Shaw tend to be af‹liated with this position. Debates about voting and civil rights have long pitted color blindness and race consciousness as mutually exclusive concepts. The same goes for originalism versus interpretivism. At least with respect to minority voting rights, however, the CBC advocates a third approach to the Fourteenth Amendment. It has frequently contended that the amendment’s framers primarily intended it to protect blacks. Consequently , the Equal Protection Clause would allow for remedial or preventive uses of race when designing districts or other electoral plans. In an effort to give a “new interpretation to the civil rights struggle that will enable [blacks] to . . . take part in” and articulate it, the caucus has advocated for a broader interpretation of the Fourteenth Amendment that takes the race-conscious aspects of its framing into account.2 As a result, it becomes rather dif‹cult to place the caucus neatly into a single ideological category. While its advocacy of original intent takes it toward the conservative pole of the binary, its race-conscious interpretation of that intent shifts it back toward the liberal end. Moreover, race consciousness is itself at odds with the color-blind rhetoric that de‹nes the civil rights movement. With respect to the minority voting rights cases at issue in this book, the CBC may best be characterized as fusionist —that is, taking a race-conscious, originalist approach to racial equality, including constitutional and statutory provisions enacted to foster such equality. 2 | The CBC...