A provocative question

It is becoming a distinct possibility that Congress may fail to renew the expiring parts of the VRA. Obviously, from a tactical standpoint, this is manna from heaven for the other party, but let us set aside partisan concerns for a moment.

The argument, so far as I can tell, has largely amounted to this:
Proponents: "We have to renew it. This is the Voting Rights Act we're talking about."
Skeptics: "Um...Can we actually talk about this?"
Proponents: "But this is the Voting Rights Act!"
Skeptics: "But I just want to..."
Proponents: "What, are you some kind of racist? This is the Voting Rights Act!"
Skeptics: "Well, I get that, but all I'm saying is, this is a four-decade old law that was intended to fix certain problems in a world that no longer exists. We're just asking that we subject this law to the same scrutiny we subject every other law to, rather than just blithely pressing the renew button."
Proponents: "..."
Skeptics: "All we're saying is that we didn't use the Saturn V to fly the ISS into orbit; similarly, just as we didn't use 1960s vintage technology to deal with the technical challenges of the 21st century, maybe it doesn't necessarily make sense that we're trying to use 1960s vintage legislation to deal with the social challenges of the 21st century. Perhaps - just maybe - it would make some kind of sense to engage with the substance of this policy, and to ask, what are the actual challenges we face today, and what is the best way to confront them, rather than counterintuitively claming that we face the same challenges today, and that even if we didn't, and we in fact face new challenges, we should use the same tools to confront them."
Proponents: "... But this is the Voting Rights Act!"

You get the picture. Yet: Is it really so clear that the expiring provisions of the VRA ought to be renewed, without amendment?

For all the "this is the Voting Rights Act" hyperbole, the Voting Rights Act is not etched in stone on tablets personally carried down from Mount Sinai by the personal representative of God. It is a law, like any other - and like any other law, it was enacted in a certain time to accomplish certain ends, and it deploys certain means to reach those ends. It is no slight against those who drafted and fought for the VRA to suggest that they wrote the VRA in the environment of the early 1960s, to address problems extant in the 1960s, using means available in the 1960s to meet ends that were measured relative to the 1960s. It is no slight against them to suggest thattheir achievement might no longer be wholly apt to a world of forty years later, a world transformed, at least in part, by the VRA.

Rep. John Lewis (D-Ga) told The News Hour that "we've made a lot of progress, but we can't go back." Whatever my political disagreements with him in recent decades, it must be remembered that Lewis once played an extraordinarily courageous and significant role in this nation's struggle to repudiate racism, but I must very respectfully dissent from his characterization of the VRA renewal. This is not a choice between renewing the VRA or going back to the days before the VRA. It is not even a choice between renewing the VRA or removing Federal involvement from this entire area. The question is this: is the VRA still the best vehicle through which to address those discrimination problems that are still extant?

Perhaps more generally, the question is simply this: if a law is passed to fix a problem, and that problem is overwhelmingly fixed, partially as a result of the law, does it necessarily follow that the same law is necessarily also appropriate to mopping up whatever problems are left, and preventing any retrenchment? That is: just because the VRA has succeeded as a remedial measure, must it necessarily follow that it is the best - or even a good - prophylactic measure?

For example, is it really so obvious that the areas most susceptible to the sort of problems that can be remedied by preclearence are still the same areas in need of suspicion today? Is circumscription of voting rights still a problem almost wholly limited to discrimination against blacks in the old confederacy, or might we conclude today that latinos in the southern states could benefit just as much from pre-clearence? By the same token, perhaps some areas that were deemed to have sufficient problems as to require pre-clearence no longer require such invasive scrutiny; is Shannon County, SD, really still the hotbed of racial discrimination that one must assume it was when it was added to the preclearence list? The proponents of renewing the VRA are not interested, and don't want you to ask. They would prefer,in fact, if you didn't ask questions about it- after all, this is the the Voting Rights Act we're talking about!

Presumably, we all agree on at least two things. First, that the Voting Rights Act has been very succesful; if it had not been, it would make no sense for proponents to argue for its unamended renewal. If it were not working, one has to assume that they would argue that it should be changed, so that it does work. That they do not implicitly admits that they think it has worked. So we all agree that it has worked. Second, and relatedly, it must surely be conceded by all that the world in which the VRA was born is not the world we live in today. Even if one takes an exceptionally jaded view of race relations in America today, it cannot seriously be contended that race relations in the America of 2006 bear much resemblance to those extant in 1965. Thus, if the VRA has worked well, and America is different, surely it must be admitted that there is the possibility that the VRA is no longer a best fit solution.

With any new statute, it seems likely we would not be so blasé there would be an assumption that the bill would have to meet some kind of probative test, a rough ends-means congruence test. If you have a bill to ban widgets, even if everyone agrees that widgets are bad, a bill that got rid of widgets by criminalizing the production not of widgets but of every gizmo that is used in the making of a widget, all would agree that wasn't the best way to ban widgets. Likewise, I am far from suggesting that there is not a need for some kind of prophylactic federal law preventing racial discrimination at the polls. What I do suggest is that might not be to simply and uncritically renew an act that was created for an entirely different purpose in an entirely different time. Perhaps, after mature contemplation, Congress might decide that, in fact, having reviewed the language and the current situation, the VRA - precisely as currently written - is exactly what we need for our present circumstances, that the law need do no more but can do no less. That is a possibility that we should be open to, and Congress should seek to find out. But to find out, it seems, is forbidden. I do not see reasoned debate about what is or is not needed, or about the state of racial discrimination in the America of 2006; what I see is a whole lot of pandering by politicians on both sides of the aisle who seem to regard the VRA as some sort of shibboleth, rather than as a law, a law that is supposed to have practical effect. I see very few legislators taking the more difficult, the more courageous path, which would be to at least ask the obvious question: is this law still right for the challenges facing America in 2006? It is bad enough that Congress will not seek an answer; that many members seem afraid to even ask the question is indefensible.

The VRA is a massive and intrusive act that can only be justified by a singly compelling need. Breaking the back of racial discrimination was absolutely such a need; Congress was right to pass it. Such intrusion may very well still be required, but we should not simply assume that because it was in 1965 - or even in 1982 - it is today, or will be in 25 years. And let me add: this is not a one way street. We should not necessarily assume that the VRA's intrusion is justified, or that it does too much - but by the same token, neither should we assume that it is not insufficiently intrusive; we should admit to ourselves the possibility that the VRA might not do enough to meet today's needs.

All I suggest is that we drop this nonsensical idea that any law, no matter what its historical significance, is immune from scrutiny. To paraphrase Reagan, a law should not be the nearest thing to eternal life we'll ever see on this earth; no law is so important that it is above reconsideration. All I suggest is that the VRA be subject to the same scrutiny as would be any other law passed by Congress.