Breaking: Scalia Blasts Racial Entitlements

Left-wing groups are up in arms after this morning’s oral arguments in Shelby County v. Holder, a case that challenges the constitutionality of section 5 of the Voting Rights Act — because it looks like five of the Justices might just vote against the now-obsolete act (as John Yoo and I advocate below in separate posts).

But the most furious response came in response to Antonin Scalia, who brushed aside the pseudo-argument that the VRA was “overwhelmingly” reauthorized by Congress in 2006, correctly noting that politicians lack the courage to repeal “racial entitlements.” Racial entitlements? Why, that’s racist talk, screams the left.

Scalia is right. In 1965, the VRA was a justifiable piece of temporary, remedial legislation. In 2013, it is simply a guarantee that African-Americans and Hispanics in certain states and localities have an absolute right to racially-gerrymandered districts to assure that they can elect members of their own ethnicities. The federal government has a veto over all local decisions that imperil that guarantee.

If that’s not an entitlement, I don’t know what is. It’s an entitlement that doesn’t extend, for example, to Asians or Native Americans. It doesn’t even extend to blacks and Hispanics in non-covered jurisdictions such as Massachusetts, which, in fact, has the greatest disparity in black vs. white voter registration in the nation.

  1. mask

    Perhaps a lawyer or law professor can explain this to me?

    How can something be constitutional in 1965 but not be constitutional today – absent an amendment?  Did case presidence change?

    Note, I agree that the VRA is not justifiable but what does this say about the state of our constitution and the supreme court?

  2. Illiniguy

    The argument isn’t one of constitutional vs. unconstitutional, it’s one of continued application of a statute that was passed to address a problem that, by all measurements, no longer exists. It was meant to be a temporary measure, and now is being used as a cudgel to guarantee “minority” districts. Its time has passed, and should be eliminated.

  3. mask
    Illiniguy: The argument isn’t one of constitutional vs. unconstitutional, it’s one of continued application of a statute that was passed to address a problem that, by all measurements, no longer exists. It was meant to be a temporary measure, and now is being used as a cudgel to guarantee “minority” districts. Its time has passed, and should be eliminated. · 24 minutes ago

    If it’s constitutionality isn’t in question then why is SCOTUS ruling on it?

    If it’s a piece of legislation that is no longer relevant but is still constitutional then it’s up to the legislature to rescind it.

    Is the act being used in unconstitutional ways that it wasn’t before?

  4. Adam Freedman
    C

    My quick take:  The 15th Amendment says:

    Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

    Section 2. The Congress shall have power to enforce this article by appropriate legislation.

    The VRA was intended as ”appropriate legislation” to “enforce” the 15th Amendment.  Let’s assume it was appropriate in 1965 — that doesn’t mean it’s appropriate in 2013.  To the contrary, given the vastly changed circumstances there’s no way it is “appropriate” now.

    That is how the VRA could have arguably been constitutional in 1965 but not today. 

  5. mask
    Adam Freedman: My quick take:  The 15th Amendment says:

    Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

    Section 2. The Congress shall have power to enforce this article by appropriate legislation.

    The VRA was intended as ”appropriate legislation” to “enforce” the 15th Amendment.  Let’s assume it was appropriate in 1965 — that doesn’t mean it’s appropriate in 2013.  To the contrary, given the vastly changed circumstances there’s no way it is “appropriate” now.

    That is how the VRA could have arguably been constitutional in 1965 but not today.  · 5 minutes ago

    Thanks!

  6. Sisyphus

    But Adam, prejudice is much more rampant now. Those wicked House Republicans let Obama have his sequester full well knowing that it might mean furloughs for the Assistant Deputy Secretary of the President’s Sock Drawer. They never did that to George W. Bush, cuz he’s white! These are mean, mean people!

  7. mildlyo

    After Kelo and Obamacare I refuse to get my hopes up about anything the Supreme Court might do.

  8. Douglas
    Juan Suros: After Kelo and Obamacare I refuse to get my hopes up about anything the Supreme Court might do. · 1 hour ago

    If you didn’t learn from the Obamacare ruling that you can’t trust SCOTUS to actually give a damn about the Constitution, you’re never going to learn. SCOTUS was once described as nine scorpions in a bottle. I don’t think that’s true.  I think it’s 4 oligarchs vs a few defenders of the Constitution, with the balance being whores.

  9. BrentB67
    Douglas

    Juan Suros: After Kelo and Obamacare I refuse to get my hopes up about anything the Supreme Court might do. · 1 hour ago

    If you didn’t learn from the Obamacare ruling that you can’t trust SCOTUS to actually give a damn about the Constitution, you’re never going to learn. SCOTUS was once described as nine scorpions in a bottle. I don’t think that’s true.  I think it’s 4 oligarchs vs a few defenders of the Constitution, with the balance being whores. · 2 hours ago

    Prostitutes and oligarchs are offended at being compared to a majority of the justices on the Supreme Court

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