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Why Scalia’s ‘Racial Entitlement’ Nonsense Is More Dangerous Than You Think

In context, Scalia’s quote is actually even more disturbing than the initial headlines suggested.
 
 
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Justice Antonin Scalia quite deservedly came under fire yesterday for his claim that a key provision of the Voting Rights Act is a “ perpetuation of racial entitlement.” If the justice were looking to confirm every suspicion that conservative opposition to the law that broke the back of Jim Crow voter exclusions is rooted in white racial resentment, he could hardly have picked a better way to do so.

Viewed in context, however, Scalia’s quote is actually even more disturbing than the initial headlines suggested. Beyond whatever resentments Justice Scalia may hold, his “racial entitlements” statement was also part of a broader theory about the proper role of judges in society. And if that theory were taken seriously by a majority of the justices, it would potentially undermine Medicare, Social Security and countless other programs. According to Scalia:

Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.

That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now.And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.

As Scott Lemieux points out, this theory resembles some of the reasoning behind an 1883 decision which  struck down an early precursor to the 1964 Civil Rights Act that banned many forms of segregation by private business. But the roots of Scalia’s legal theory are probably several decades more recent than the late Nineteenth Century.

A major reason why U.S. constitutional law is difficult and American judges are powerful is that the Constitution is not a particularly precise document. The  Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” but it provides absolutely no guidance whatsoever on what those other rights could be. The Fourteenth Amendment prohibits states from abridging the “privileges or immunities of citizens of the United States” and it prevents the loss of life, liberty or property “without due process of law.” What are the “privileges or immunities” protected by the Constitution? The Constitution doesn’t say! And the Supreme Court’s answer to this question is  rather ridiculous.

Because the Constitution is so imprecisely drafted, judges have at times wielded it as a tool to impose their own policy preferences on the law. After all, nothing in the Constitution doesn’t say that the word “liberty” means the liberty to work in a grueling job that literally tears your lungs apart from the inside without the benefit of workplace safety laws or other basic labor protections. Indeed, that was more or less the holding of the Supreme Court’s 1905 opinion in  Lochner v. New York.

Beginning in the 1930s, the Supreme Court more or less came to terms with the fact that judges were fabricating imaginary constitutional restrictions, and that this was a bad thing. Indeed, probably the most important question addressed by Twentieth Century constitutional law and scholarship was how to reconcile the legitimate need for judges to police the boundaries of liberty with the fact that the Constitution provides them with little guidance on how to do so. An unelected Supreme Court had recently engaged in overreach that harmed the most vulnerable Americans and struck down laws enacted by elected representatives in the process, and this situation was untenable. But a Court that simply gave Congress free reign to engage in racism or sexism or to toss people in jail for no reason would be equally intolerable.