November/December 2013

Celebrating Constitution Day with the 12th Annual Review

On September 17, 1787, the delegates to the Constitutional Convention gathered in Philadelphia’s Independence Hall to sign the newly drafted U.S. Constitution. Every year, to celebrate that momentous date in liberty’s history, the Cato Institute hosts a daylong conference. This year marked the 12th and, as always, coincided with the release of the 2012–2013 Cato Supreme Court Review.

The casual observer might be forgiven for feeling confused during the last week of the term. First, the Court punted on affirmative action, making it harder to use race in admissions decisions without prohibiting the practice altogether. It then struck down a key part of the Voting Rights Act. The very next day, the Court struck down the Defense of Marriage Act (DOMA). What is going on? Is the Court liberal or conservative?

The theme of these cases is best captured by the notion that we are all equal under the law. If that’s the case, then our rights shouldn’t differ by skin color or sexual orientation. In other words, the Supreme Court is increasingly embracing the Constitution’s structural and rights-based protections for individual freedom and self-governance.

At the conference, Gail Heriot, a professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights, placed Fisher v. University of Texas at Austin in its proper historical context. “By demanding that in the future a college or university supply ‘a reasoned, principled explanation’ for its diversity goal … the Court inched the country toward a more sensible vision of the Constitution’s requirements in the higher education context,” she said. As social scientists increasingly establish that racial preferences don’t even benefit the people getting them — due to a phenomenon known as “mismatch” — we may see Fisher as the high-water mark on this issue.

Will Consovoy and Tom McCarthy, partners at Wiley Rein who were among the lawyers who represented Shelby County, Alabama, in its challenge to the Voting Rights Act, describe the Court’s ruling in the case as a “restoration of constitutional order.” By that they mean that throwing out the VRA’s outdated “coverage formula” recognizes the social reality in America today. In other words, this country has changed since the systemic racial disenfranchisement of the 1960s justified the constitutional deviation of effectively putting certain states under federal electoral receivership.

Elizabeth Wydra, chief counsel at the Constitutional Accountability Center, provided a humanizing background on United States v. Windsor before examining the opinions in this DOMA case. “Perhaps most important for advocates of marriage equality,” she said, “the majority’s opinion recognizes that the ‘States’ interest in defining and regulating the marital relation’ is ‘subject to constitutional guarantees.’”

The conference closed with the annual B. Kenneth Simon Lecture, during which a distinguished legal scholar presents a paper to be included in next year’s Cato Supreme Court Review. This September, the Hon. David B. Sentelle — a senior circuit judge of the U.S. Court of Appeals for Washington, D.C. — discussed the First Amendment. More specifically, he asked whether freedom of the press created a privileged class known as “the press,” or whether it was meant to create an equal protection for everyone using the communication method known as “the press.” His conclusion? “The institutional media has the protection of the rights encompassed in the First Amendment, but so do the rest of us,” he said. “You are not nobles, and we are not sock puppets.”

“Not in every case and not without fits and starts,” Review editor-in-chief Ilya Shapiro writes, “but on the whole the justices are moving in a libertarian direction.” It’s therefore no coincidence that in each of the three big issues — affirmative action, the Voting Rights Act, and gay marriage — Cato’s Center for Constitutional Studies is the only organization to have filed briefs supporting the winning side. In fact, the Institute went 15-3 throughout the entire year.

Even beyond racial preferences and gay rights, this Court is coming to be defined by what Justice Anthony Kennedy has called “equal liberty.” As such, we may find that we are now living the Court’s “libertarian moment.”