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

March 1, 2013 in Blogs

By Ian Millhiser, Think Progress



 

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 …read more
Source: ALTERNET

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