Academic journal article
By Blacksher, James U.
Northwestern University Law Review , Vol. 95, No. 2
THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES
By Alexander Keyssar. New York: Basic Books, 2000
Alexander Keyssar's project in The Right to Vote: The Contested History of Democracy in the United States1 is in danger of being undermined by the course the Supreme Court has been plotting through its new redistributing jurisprudence beginning with Shaw v. Reno.2 Keyssar wants us to see the value of a more holistic understanding of the history of Americans' efforts to broaden participation in democratic government. Led by Justice O'Connor, the Court seems to be urging us to forget that very history. It may even be developing a constitutional prohibition against African Americans and Latinos relying on the history of their struggle to gain access to the franchise as a primary basis for defining their political identities. Such reasoning also undermines Keyssar's attempt to demonstrate through careful historical analysis that class, not race, has been the dominant factor in American politics.
The Court's astounding judicial voting rights jurisprudence expresses the apparent conviction of the five-justice Shaw majority that the Court has a responsibility to suppress what it perceives to be unhealthy divisiveness in American politics, for the sake of national unity, regardless of whether individual citizens are denied equal protection of the laws. It is racial divisiveness in particular, not divisiveness in general, that according to the Shaw Court, requires special judicial scrutiny. Thus, Shaw amounts to an official preemption of Keyssar's thesis. It makes a constitutionally binding declaration that race, not class, is such a dangerous component of our nation's history that government must "forgetaboutit" and begin writing history anew. The Court's journey to this radical position itself would be an excellent subject for historical analysis, at which this Review can only gesture.
The journey reached a milestone in City of Mobile v. Bolden,3 which made intentional discrimination an element of proof in constitutional challenges to racially based vote dilution. Justice Stewart's plurality opinion displayed the Supreme Court's enduring ambivalence toward the relevance of history in voting rights jurisprudence. On the one hand, he argued that the long history of official efforts to deny blacks the franchise or to limit their electoral influence could not, "in the manner of original sin,4" taint every election law that disadvantages African Americans. On the other hand, he relied on understandings of the Fourteenth Amendment from "[m]ore than 100 years ago"5 to rebuff Justice Marshall's attempt to extend to black voters as an electoral group the constitutional right to an equally weighted vote, which the Court recently had read into the Fourteenth Amendment.6 Justice Stewart essentially was choosing which of America's historical narratives should be privileged in this voting rights context-the story of the struggle of slaves and their descendants for freedom and equality, which is based primarily on the grand phrases of the Reconstruction Amendments, or the story of the power struggle between the states and the federal government over regulation of the franchise and other privileges and immunities, which is dominated by the Court's restrictive interpretations of the Reconstruction Amendments in the last half of the nineteenth century.
In The Right To Vote, Keyssar surveys the broad developments in the history of the American republic that formed the political context of Bolden and its contemporaneous voting rights decisions. He concludes that the Bolden majority favored the states' rights narrative out of concern that the Court's unfolding constitutional voting rights jurisprudence was getting too far ahead of the public and that responding to African Americans' historical claims would "open a new Pandora's box of claims for representation by nonracially defined social or political groups. …