Law of the United Kingdom

• For the second time in three months, the U.S. Supreme Court has rebuffed Alabama’s attempts to advance its legislature’s congressional maps that federal courts have ruled harm Black voters.
• The court had first rejected the maps in its stunning June 8, 2023, decision that upheld the Voting Rights Act of 1965.
• But in an act of defiance, Alabama lawmakers resubmitted maps that didn’t include what the court had urged them to do – create a second political district in which Black voters could reasonably be expected to choose a candidate of their choice.
• On Sept. 5, the panel of three federal judges rebuked the Alabama Legislature when it ruled that the state’s proposed voting districts failed to create the second Black district.

A surprising decision to protect Black voters

• Alabama officials have denied any wrongdoing and said their proposed voting districts, including one where the percentage of Black voters jumped from about 30% to 40%, were in compliance with recent federal court rulings.
• Instead, our elected representatives and our voters must apparently be reduced to skin color alone.” At issue in the Alabama case is whether the power of Black voters was diluted by dividing them into districts where white voters dominate.
• After the 2020 census, the Republican-controlled Alabama Legislature redrew the state’s seven congressional districts to include only one in which Black voters would likely be able to elect a candidate of their choosing.
• In its surprising ruling on June 8, the Supreme Court jettisoned Republican-drawn congressional districts in Alabama that a federal district court in Alabama had ruled in 2022 discriminated against Black voters and violated Section 2 of the Voting Rights Act of 1965.
• All three conditions were true in Alabama, and the totality of the circumstances suggested minority voters did not participate equally in the political process in the area.

What Alabama did

• In its decisions on Alabama’s redistricting, the Supreme Court upheld laws that were designed to protect minority voting power for the last nearly four decades.
• Given Alabama’s long-standing history of suppressing the votes of its Black citizens, the Supreme Court still may not have written its last word on race and redistricting.
• The court is scheduled in October 2023 to hear a similar case involving South Carolina’s voting districts.

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• Today a majority of U.S. Supreme Court justices are either self-described originalists or strongly lean toward originalism.
• Yet less than 50 years ago, originalism was considered a fringe movement, hardly taken seriously by most legal scholars.
• Originalism is the theory that judges are bound to interpret the Constitution as it would have been interpreted in the historical era when it was written.

How to read a constitution

• Few if any people would deny that all Americans are entitled to the equal protection of the law.
• When the Constitution was written, for example, only men were eligible for public office.
• When the Constitution was written, it was assumed that the sexes had separate spheres.
• When that fundamental value judgment shifted radically in the 20th century – as expressed in the 19th Amendment giving women the vote – it meant that the Constitution had to be read in a new way so that “he” is now interpreted as inclusive.

Flexible originalism

• Yet, as a scholar of law and philosophy, I believe that flexible interpretation was the original intention of the framers.
• Originalism began not as a neutral theory of interpretation but as a rallying cry for conservatives.
• The central and plausible core of originalism is the idea that judges should not impose their own personal values on the Constitution.
• But the real debate, I believe, is not about originalism versus the freedom to ignore the Constitution, but rather it is about just what the true, original meaning of the Constitution is.

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