Home / General / Fables of the Post-Reconstruction, With Antonin Scalia

Fables of the Post-Reconstruction, With Antonin Scalia


Today’s oral arguments concerning the constitutionality of Section 5 of the Voting Rights Act were as depressing as you’d expect. As has been his recent tendency, Scalia did is the favor of using his hypotheticals to give away the show. He sees the robust federal protection of voting rights as a problem that the Supreme Court needs to solve, using the same kind of arguments about “special rights” the Supreme Court used to help pave the way to Jim Crow in the late 19th century:

The most remarkable example of the contemporary Republican hostility to civil rights came, unsurprisingly, from Antonin Scalia. Ensuring equal access to the ballot, asserted Scalia, represents “a phenomenon that has been called the perpetuation of racial entitlement.” As it happens, Scalia’s argument has precedent … in the white supremacist arguments made by the Supreme Court in the 19th Century when it was dismantling Reconstruction. In the Civil Rights Cases, the majority opinion sniffed as it struck down the Civil Rights Act of 1875 that “there must be some stage in the progress of his elevation when [the freed slave] takes the rank of a mere citizen and ceases to be the special favorite of the laws.” As Justice Harlan noted in dissent, this line of argument was nonsense: “What the nation, through Congress, has sought to accomplish in reference to [African-Americans] is what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens, nothing more.” Harlan was right then, and he’s even more obviously right now. Ensuring equal access to the ballot does not represent a “perpetuation of racial entitlement.” It simply provides the foundation equal citizenship.

Scalia’s arguments about “racial entitlements” also represent an odd theory of democracy. The strong support for the VRA, Scalia argues, is just a product of the fact that “when a society enacts racial entitlements, it is very difficult to get out of them through the ordinary political process.” Note, first of all, the hostility evident in Scalia’s phrasing: he seems to take for granted that it’s an important goal to “get rid of” what he erroneously calls a “racial entitlement.” And leaving that aside, his argument perversely assumes the effectiveness of the bill and the political support it generated are reasons the Court should strike it down. This makes no sense. As Justice Breyer noted, it’s not irrational for legislators to want to continue to apply a remedy that has largely (but not fully) eradicated the disease of disenfranchisement.

So if I understand Scalia’s jurisprudence correctly, the 14th Amendment (which says nothing about race) applies only to racial discrimination (that affects white people) (unless a Republican has a presidential election to win), while the 15th Amendment (which explicitly forbids racial discrimination in voting and empowers Congress to enforce the provision) should not be construed as allowing Congress to prevent racial discrimination in voting, because this would be a “racial entitlement.”  Fascinating.

The rest of the Republican justices weren’t quite as explicit in their hostility, but while I guess you cold hold out some faint hope that Kennedy will pull back from the brink, I agree with Rick Hasen that the heart of the Voting Rights Act is doomed. We’ll get a superficially “minimalist” Roberts opinion that strikes down the preclearance requirement, while holding out the theoretical possibility that Congress could pass a new one, although it’s clear that no way Congress could go about it would satisfy the Court’s Republican majority.

…Paul linked to it below, but make sure to read him as well.

…see also Flatow and Millhiser. And then Serwer on Roberts’s long war on the Voting Rights Act.


If the Roberts Court declares Section V of the Voting Rights Act to be unconstitutional, as seems sadly likely, it will have complete a historically resonant parlay through which corporate influence over elections is enhanced while minority participation is made more difficult. This did not work out very well the last time, and it is unlikely to work out well now.
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  • To me, the most outrageous part of the argument is where Scalia says that the VRA can’t be fixed by Congress because it’s too popular and no member of Congress wants to vote against “voting rights”.

    Basically, that’s an argument for a Supreme Court dictatorship! It’s now their JOB to overturn popular laws to save the public from themselves!

    • sharculese

      There appears to be a pretty significant chunk of the public that’s opposed to voting rights, though, so I’m not sure where he’s getting that from.

      • Scott Lemieux

        I discuss that in the piece. Scalia’s assumption that nobody could win statewide office in Utah or Alabama or Idaho if they opposed the VRA is…not very plausible.

        • Cody

          Though if a Republican ran for President with the platform “Black people don’t deserve any real assurances of voting power!” he would have a tough time in the national election.

          • Hogan

            But “Protect the integrity of your vote by breaking the power of urban machines!” might get you somewhere.

    • Incontinentia Buttocks

      Now to be fair, Dilan, it’s only their job to do this when Antonin Scalia doesn’t like the laws. When he does like the laws, it’s their job to defer to the political branches. Remember that Justice Scalia, and Justice Scalia alone, is infallible when speaking ex cathedra on matters of Constitutional doctrine.

      • commie atheist

        And only when he’s wearing the Red Shoes of Justice.

    • Brandon

      Yeah, that’s a hell of a constitutional argument he’s trying to make: something is overwhelming popular, therefore it must be wrong.

      He brings up the original votes on the VRA and contrasts that against the current votes, as if we shouldn’t expect 1) society to get less racist in the generations since the CRA and VRA and 2) legislators elected by enfranchised minorities to support protections of their voting rights.

      How can anyone support his argument? It doesn’t make any damned sense. This is worse than his SB1070 dissent.

      • Scott Lemieux

        And at the last oral argument he backed it up with that argument about the Israeli Supreme Court that is 1)empirically inaccurate and 2)idiotic on its face.

        • Brandon

          All unanimous SCOTUS decisions are declared null and void!

        • bexley

          All his hallmarks .

        • timb

          I know he and Limbaugh are friends, but is he actually getting his news from Limbaugh too?

        • So we should be looking to foreign law now?

          • Hogan

            “We’re a Judeo-Christian country; therefore Israeli law is not foreign, except when it says you shouldn’t torture people. That shit is right out.”

      • DrDick

        He simply reveals his deep seated disdain and loathing for democracy. He is not even pretending that he is not a cryptofascist authoritarian anymore.

    • DrDick

      I think he would be perfectly happy with a Presidential or Congressional dictatorship, as long as they were completely controlled by conservative Republicans.

    • David Stuligross

      To be fair, it is ALWAYS the Supreme Court’s job to protect the American public from itself. Rampant populism can and has led to an abridgement of civil liberties. Scalia’s failing, in this moment, is to suggest that the American public would be endangered if the government retains the right to promote and ensure equal voting rights for all.

      • To be fair, it is ALWAYS the Supreme Court’s job to protect the American public from itself. Rampant populism can and has led to an abridgement of civil liberties.

        This seems to buy too much of Scalia’s framing. Part of the SC’s job is to preserve the rights protected in the constitution regardless if a violation is popular or not.

        The reasoning that since something is popular it is prima facie illegitimate is odd on its face, but, depending on the strength of the “prima facie”, could be workable. Scalia’s isn’t.

      • There’s a big difference between saying the Court has a counter-majoritarian role (it does) and arguing that a law is somehow suspicious because it is popular and members of Congress don’t feel they can afford to oppose it. If a law is unconstitutional, the Court’s job is to invalidate it whether it gets 51 percent support in Congress or 98 percent, and in contrast, if it is constitutional, it doesn’t become suspicious just because it is popular.

        And normally, those scholars who DO advocate some consideration of the popularity of a law do it in the other direction– saying that the Court should be extra-careful about invalidating popular laws due to legitimacy concerns.

        But the idea that the Court has to come in like Mighty Mouse and save the day because “voting rights” is too popular and nobody realizes what a terrible thing they are voting for isn’t a viable constitutional theory in a democratic republic.

    • Rarely Posts

      He was also really critical of the name:

      They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful — the Voting Rights Act. Who is going to vote against that in the future?

      We’re critical of his argument here, but when Congress passed the PATRIOT Act with only one Senator in opposition, Justice Scalia realized that he had to jump forward to defend people’s Fourth Amendment rights in the face of this populist wave.

      Honestly, his arguments here are so implausible it’s painful. He clearly doesn’t rely on this reasoning in other contexts (and he shouldn’t, because it’s stupid).

      It’s astounding to me because I honestly don’t understand how one finds the Voting Rights Act constitutional. Any textualist or originalist reading of the 15th Amendment would seem to support it. You have to bend over backwards to find to the contrary.

      The only problematic aspect is that Congress is still relying on the disenfranchisement data from back in the 1960s (though, in fact, at this reauthorization there was still substantial evidence of greater disenfranchisement efforts and racial polarization to this day). It would be awesome if the Court struck down only the portion of the Act that restricts its scope, so that it applied across the Country. Of course, never going to happen, but a boy can dream.

      • Rarely Posts

        Sorry, one edit: “It’s astounding to me because I honestly don’t understand how one finds the Voting Rights Act unconstitutional.” I wish this blog had an edit function, or at least a preview function.

      • DrDick

        I am not entirely convinced that the South is significantly more racist in this regard than the rest of the country, especially rural areas. That said, it is not because the South is any less racist than it was, but because racism is and always has been a national problem, not only a regional one, and that Republicans in the rest of the country have become much more active in voter suppression and intimidation efforts. I think there is a much stronger case to expand Section 5 to cover the entire country.

        • rea

          I am not entirely convinced that the South is significantly more racist in this regard than the rest of the country, especially rural areas. That said, it is not because the South is any less racist than it was, but because racism is and always has been a national problem

          The lsit of preclearance jurisdictions is far from limited to the South:

          Alabama, except for the city of Pinson
          Georgia, except for the city of Sandy Springs
          South Carolina
          Texas, except for Jefferson County Drainage District Number Seven and Northwest Austin Municipal Utility District Number One
          Virginia, except for 24 counties (Amherst, Augusta, Bedford, Botetourt, Carroll, Craig, Culpeper, Essex, Frederick, Grayson, Greene, James City, King George, Middlesex, Page, Prince William, Pulaski, Rappahanock, Roanoke, Rockingham, Shenandoah, Washington, Warren, and Wythe) and six independent cities (Fairfax, Harrisonburg, Manassas Park, Salem, Williamsburg, and Winchester)
          California: Kings (except for Alta Irrigation District), Monterey, Yuba (except for Browns Valley Irrigation District)
          Florida: Collier, Hardee, Hendry, Hillsborough, Monroe
          New York: Bronx, Kings (Brooklyn), New York (Manhattan)
          North Carolina: Anson, Beaufort, Bertie, Bladen, Camden, Caswell, Chowan, Cleveland (except for the city of Kings Mountain), Craven, Cumberland, Edgecombe, Franklin, Gaston, Gates, Granville, Greene, Guilford, Halifax, Harnett, Hertford, Hoke, Jackson, Lee, Lenoir, Martin, Nash, Northampton, Onslow, Pasquotank, Perquimans, Person, Pitt, Robeson, Rockingham, Scotland, Union, Vance, Washington, Wayne, Wilson
          South Dakota: Shannon, Todd
          Michigan: Clyde Township (Allegan County), Buena Vista Township
          New Hampshire: Rindge, Millsfield, Pinkham’s Grant, Stewartstown, Stratford, Benton, Antrim, Boscawen, Newington, Unity

          • DrDick

            Yes, but this is almost always, as it was by Roberts, framed as a Southern thing.

  • Brandon


  • Glenn

    So obviously for Scalia this is not just a question of opposition to the preclearance formula, or the preclearance method at all, but the VRA itself. Nice.

  • Bill Murray

    Take a break Justice 8, Justice 8 take a break
    You’ve been on this shift too long

    And the blog conductor says
    Take a break Justice 8, Justice 8 take a break
    We can reach our destination, but we’re still a ways away

    • Scott Lemieux

      With Scalia, like Kohoutek logic is gone.

  • Murc

    I don’t know if I’m glad Scalia has stopped even trying to disguise his intellectual bankruptcy, or to long for the days when he’d at least try and construct a framework that wasn’t ludicrous on its face.

    • LosGatosCA

      Since he has not had the good grace to leave, it’s helpful that he’s decided to act in a way that fully discredits his hackery beyond a reasonable doubt.

  • L.M.

    Leave it to Antonin Scalia to gratuitously invoke the death penalty (but not, of course, the death penalty as it actually exists in the United States) in explaining why the Voting Rights Act is what real racism looks like. What a classy guy.

    • john (not mccain)

      just like actual innocence does not preclude legal execution, being actually eligible to vote does not preclude legal exclusion from the voting booth.

  • Jon

    Anyone else immediately think of that episode of The West Wing where the SC Justice is writing in rhymes? Yeah.

  • MAJeff

    So, enjoying the rights of citizenship is now a “racial entitlement” for black folks.

    The world will truly be a better place when Scalia is no longer in it.

    • TT

      Hear, hear.

      I think it’s obvious by now that opposition to the New Deal is just the appetizer. What the conservative movement really wants to undo is the Union’s victory in the Civil War.

      • Origami Isopod

        Oh, they want to go a lot further than that.

        • BigHank53

          I know we joke about them wanting to repeal the Enlightenment, but I’m starting to wonder if they want to repeal the entire New Testament, too.

          • xxy

            Well with ideas like giving all your wealth to the poor and loving your enemies and treating others like you would want to be treated the NT is practically a first-century Communist Manifesto. The OT with an angry God who leads His Chosen People to kill everyone in the Promised Land and rule it as long as they follow His Law and His Covenant? That’s a real American book.

      • timb

        I still think they want to Gilded Age without Jim Crow

        • timb

          “to *return* to the Gilded Age

          • Vance Maverick

            Given this report, why do you say “without”?

            • Timb

              Because, say what you will, Nino is not a racist. He IS a guy with a tin ear for minority complaints, unless the minority is rich people or the embattled American Christian.

              It’s possible for partisan’s to care very deeply in seeing their people win and the other guy lose. Couching that opposition as Jim Crow is unfair.

              Let’s face it, Vance, Scalia wants ALL poor people to stop voting

  • sibusisodan

    I do wonder what history is going to make of Scalia’s tenure on the bench. I reckon he won’t be forgotten, but I doubt the reasons for that will be the ones he’s hoping for.

    Can those of you with access to longer institutional memory than I compare the attitude of the current SCOTUS with previous ones? Is this court unusually dismissive of, say, precedent, constitutional norms and reasoned thought compared to its predecessors?

    I know SCOTUS has laid some rotten decisions in the past, but this bad, and this transparent?

    • mpowell

      I imagine Scalia will be forgotten more than most justices. His jurisprudence is simply too incoherent to really serve as a reliable reference in the future. In 50 years when the fulcrum of politics has shifted, his opinions will simply appear bizarre and they won’t be frequently referred to.

      • john (not mccain)

        who wrote dred scott?

        • mpowell

          One huge famously bad decision is a different kettle of fish. And Scalia isn’t a chief justice. He doesn’t get headline credit for decisions good or bad. For example, Bush v Gore will be remembered, but Scalia was one of 5 justices determining it and he won’t get any special note. And that’s popular history anyways. If you look at just the legal community, this court in general is going to be mostly ignored. They reach decisions without extensive reach for highly political purposes using inane legal reasoning (standing for example). Scalia’s legal vision is far more sweeping than Roberts, but it falls down for being simply incoherent. Once we move beyond the immediate impact of their decisions, people won’t reference these cases because there’s no jurisprudential theory worth referring to.

        • rea

          Taney, of course, who is actually a fairy important figure even without Dred Scott

      • Origami Isopod

        You assume the fulcrum will have shifted to the left.

        • LosGatosCA

          Of course. History has been tilting left since the start of the Enlightenment.

          No matter that there have been setbacks, some very serious, nonetheless the overall progress is clear, even if the pace is unsatisfying.

    • timb

      Read “the Oath” by Jeff Toobin. No matter how much contempt we hold Scalia in, his originalism philosophy is the preeminent school of thought for rightist Constitutional analysis. Scalia didn’t invent it, but the more nimble minded Scalia of yesteryear championed the ascendant school of “thought” in American jurisprudence.

      • sibusisodan

        Right, but that’s kinda what I was trying to get behind. Sure, Scalia nominally has a school of thought. And that school of thought is originalism.

        But right now, what he’s offering isn’t originalism, in the sense of a (to whatever extent) consistent theory of jurisprudence. He’s offering, so it seems, whatever damn fool thing happens to pop into his head and then calling that originalism. Broccoli mandate! Racial entitlement! Drink! Girls! &c

        He’s behaving like he doesn’t give a damn about consistency or whatever framework got him there in the first place.

        I would be unsurprised if previous SCOTUS didn’t have their own legal frameworks into which they tried to shoehorn decisions – that’s how these things go. What I want to know is whether previous SCOTUS ever ditched those frameworks in favour of ‘whatever’ to the degree we’re seeing now.

      • rea

        Actually, he’s not, strictly speaking, an originalist–he’s sort of off on his own unique theory, under which what matters is not the intent of the drafters, but what [Scalia claims, using his own unique take on history] an objective person living at the time of the drafters would have thought the language meant. And of course, it’s all just cover for accute rightwingnut partisanshiip.

      • L2P

        He’s prominent regarding one branch of originalism, “original meaning.” However, he’s likely to be remembered as the reason nobody really believes in “original meaning” as a useful way to interpret the constitution because it’s indistinguishable from just, you know, interpreting the Constitution according to what seems reasonable and necessary for contemporary times.

        The problem with Scalia’s originalism, compared to textual originalism, is that it can be applied to allow living constitution results when you want or textual originalism results when you want. That’s very useful when you want to get to whatever decision aligns with the current conservative agenda. Not so useful when you want to argue that living constitutionalism is unmoored from core principles.

        • Scott Lemieux

          As far as I can tell, pretty much all originalists claim to be “original meaning” rather than “original intent” originalists, and as far as I can tell it’s also a distinction without any practical consequences.

          What’s different about Scalia is that he’s sometimes claimed to be a textualist but only a “faint-hearted” originalist.

  • Phil

    So I’m sure that all the right wing blogs are highlighting Scalia’s statement that And history has shown that once a racial entitlement is established, it’s very hard to eliminate it legislatively unless a court steps in and determines that it conflicts with the Constitution. and railing against JUDICIAL ACTIVISM, right? Right?

    • efgoldman

      Is there at least a small possibility that Roberts and Kennedy could be so put off by Scalia’s “reasoning” that they’ll either go for a very limited decision, or even uphold the act? Grasping at straws here, people.

      • Rarely Posts

        I think this is possible — a very small possibility, but possible. We know that Roberts flipped on Obamacare at the last moment. I’m sure he had a lot of reasons (and, the fact that Obamacare is clearly constitutional may have been one of them). Nonetheless, I also suspect that Scalia’s absurd, right-wing rhetoric at the arguments did not help the right-wing cause. The press coverage of the arguments correctly made it sound like an absurd political sideshow in which the Republican nominees were driven by nothing but partisan politics. Roberts may not have liked that. And, I doubt that he’s liking the press coverage of this argument either.

        • Rarely Posts

          Still, I would emphasize that the possibility is smaller here because Roberts has long opposed the VRA and has seemed passionate about that opposition. In contrast, he generally has taken a very expansive view of federal power, so upholding Obamacare was the natural result that his partisanship had to overcome.

  • Elk

    Scalia gonna write a book it will be called Life and How to Live It.

  • Excited for when this gets overturned and all those conservatives who objected to “those provisions which impose burdens unequally upon different parts of the nation” propose a new VRA which has pre-clearance for all 50 states!

    • sharculese

      Clearly you’re not familiar with his recent treatise, No One Understands the Constitution Except Me.

  • penpen

    Justice Scalia: taking Slate-style bullshit contrarianism to nonsensical extremes

    • sharculese

      In all fairness, Slate’s legal reporting is mostly handled by the excellent Dahlia Lithwick and Emily Bazelon.

      • penpen

        Certainly, but I refer to the Slate brand generally, which is a bit infamous for this.

      • Origami Isopod

        I wouldn’t call Emily Bazelon “excellent.”

        • sharculese

          Oh ick. Did not know about that.

  • rea

    Does anyone understand the constitutional basis for an attack on the VRA? The 15th Amendment gives an express grant of power–“The Congress shall have power to enforce this article by appropriate legislation.” WTF does Scalia think he gets the power to decide that preclearance is unconstitutional? From the word, “appropriate”?

    • efgoldman

      WTF does Scalia think he gets the power to decide that preclearance is unconstitutional?

      WTF does Scalia think he gets the power to do or say an of the asshole things he says or does? From his black robe, high bench, and lifetime appointment, where else? And I disagree with the folks upthread who think he won’t be remembered. When all the information is a click or two away,for anyone, in whatever format exists then, its a very different thing from some doctoral student having to search through paper archives of opinions and arguments.
      (Moved from where it doesn’t belong. FTWP!)

      • (the other) Davis

        Oops, responded to the wrong instance of this.

        When all the information is a click or two away,for anyone, in whatever format exists then, its a very different thing from some doctoral student having to search through paper archives of opinions and arguments.

        As I noted below, all historical Supreme Court opinions are already available on Google Scholar (and the important ones are discussed on Wikipedia). It’s hard to imagine the cases being any more accessible. The main issue is that, aside from law or history nerds, people tend not to care about the make-up of past Supreme Courts. Hard to see why that would change in the future.

    • penpen

      I’d really love some insight on this too.

    • Julian

      Read City of Boerne v. Flores, which holds that Congress can use the section five enforcement power of the Fourteenth Amendment to enforce rights guaranteed by that Amendment, but that Congress may not use that power to change the underlying substantive right. Scalia can just say the preclearance measures change the underlying substantive right.

      • (the other) Davis

        Sure, he can say that, but he’d still just be making shit up. The underlying substantive right is the right to vote, regardless of race. The preclearance measures address this right under any non-insane view. Perhaps the conservative justices plan to impose a procedural limit, and not just a substantive one, on rights enforcement?

    • L2P

      I think he’d say some combination of two things.

      First, the people at the time didn’t think that pre-clearance was part of the 15th amendment; they were thinking about stuff like sending in the national guard to make sure blacks weren’t excluded from polling stations. Evidence not included.

      Second, he’ll say that pre-clearance violates equal protection (or the 15th amendment itself) because some voters have “pre-cleared” voting rights but others don’t. This unconstitutinally deprives some voters of an equal right to vote. Whether it’s the voters in the “pre-clearance” jurisdictions or the other voters I’ll leave up to you to decide, given Scalia’s comments regarding who the real racists are here.

      • rea

        How on earth do you say that the express grant of power in the 15th Amendment is subject to the equal protection requirements of the 14th (both because 15 comes after 14, and because the 14th Amendment is a limitation on state, not federal power)?

    • Antonin Scalia

      Since so many of you have asked I’ll explain my revised judicial theory of post-structuralism.

      My reading of the constitution clearly shows the VRA to be unconstitutional.

      Some of you may not agree my reading of the text but to give a text a single interpretation is to impose a limit on that text. Since this is the consitution there can be no limits on it.

      Text is a tissue of quotations,drawn from innumerable centers of culture, rather than from one, individual experience. The essential meaning of a work depends on the impressions of the reader, rather than the passions or tastes of the writer; a text’s unity lies not in its origins, or its creator, but in its destination, or its audience. The essential meaning I have drawn from the constitution is that it supports whatever I want it to support and that Broccoli is an abomination.

      • Roland Gérard Barthes

        From hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.

  • DocAmazing


    • LosGatosCA


  • efgoldman

    WTF does Scalia think he gets the power to decide that preclearance is unconstitutional?

    WTF does Scalia think he gets the power to do or say an of the asshole things he says or does? From his black robe, high bench, and lifetime appointment, where else? And I disagree with the folks upthread who think he won’t be remembered. When all the information is a click or two away,for anyone, in whatever format exists then, its a very different thing from some doctoral student having to search through paper archives of opinions and arguments.

    • efgoldman

      This belongs up there ^^ as a reply to rea. Where I put it. FYWP.

    • (the other) Davis

      When all the information is a click or two away,for anyone, in whatever format exists then, its a very different thing from some doctoral student having to search through paper archives of opinions and arguments.

      It’s actually not that difficult to access historical Supreme Court opinions. They’re all publicly available on Google Scholar.

  • I went straight to Bradley’s Civil Rights Cases opinion too, but I failed to grab Harlan’s great rebuttal. Nice.

    If the Court took seriously this ‘it doesn’t count when Congress votes for nice sounding name’ bills claim, they could pretty much wipe out everything that’s been passed in the last 25 years.

    • Snarki, child of Loki

      Look for an “only applies in the present circumstance; do not use for a precedent, for external use only, void where prohibited by GOP” clause in the ruling.

    • xxy

      Isn’t that the point?

  • Broken Wingnut Tautology

    Blacks have it too good! They have cell phones and refrigerators!

    Blacks are lazy and shiftless and get everything for free! I want what they get!

    Blacks are the real racists for pointing out whites have a long history that continues to this day of denying blacks equal rights!

    Blacks ended racism a long time ago, no thanks to Robert Byrd and the rest of the Ku Klux Demoklans!

    Blacks are murderous thugs who deserve the harshest punishments possible!

    Blacks should have no affirmative action and should be thankful for the degrading non-union jobs we magnanimously give them!

    Blacks should be murdered in the streets by stalking vigilantes!

    Blacks are so scary that I need a gun that I’m much more likely to use against myself and/or my family!

    Blacks believe in God and hate homosexuals, so they should be Republican! Why aren’t they!? I don’t get it!

  • Data Tutashkhia

    I’ll admit that I don’t understand any fine details of this thing, but the main issue seems clear: federalism. Is the US of A a union of (more or less) independent states, or is it, the whole thing, just another state with a weird name? What is extent of states autonomy (the infamous ‘states’ rights’)?

    Well, clearly, opinions differ, and they will always differ. As long as the ‘union’ exists, the politics of it will keep moving the marker back and forth.

    • chris

      Is the US of A a union of (more or less) independent states, or is it, the whole thing, just another state with a weird name? What is extent of states autonomy (the infamous ‘states’ rights’)?

      You know, if Scalia had looked back in history just a little further than Reconstruction, he would have seen the last time these issues were disputed…

      Seriously, when a constitutional amendment says that Congress shall have the power to enforce it by appropriate legislation, I think it’s pretty hard not to reach the conclusion that Congress shall have the power to enforce that amendment by appropriate legislation *regardless of what the states’ rights would have been before that amendment*. That being the whole point of passing the amendment at all.

  • Pingback: Scalia Said What? | Bark Bark Woof Woof()

  • Scalia used the phrase ‘racial entitlement’ as early as 1979 – in a piece attacking affirmative action.

  • jake the snake

    Shorter Antonin Scalia: “It is unconstitutional to enforce the 15th amendment”

  • Pingback: Voting Rights and Metropolitan Spatial Justice « metropolitan history()

  • retr2327

    So let me see if I understand Scalia’s “legal reasoning” here. Suppose Congress passed a law to address rape and other violence against women (you could call it the Violence Against Women Act, or some such), with certain provisions applicable only in areas with a demonstrated history of excess rapes, spousal abuse, etc. In response to this law, rates of such violence dropped (but did not completely disappear). So now that the problem has been “solved,” those provisions are suddenly unconstitutional.

    Seriously? WTF kind of gibberish legal reasoning is that? (and let’s not even talk about what kind of social policy it might be . . . .)

    • SteveHinSLC

      I don’t think the reasoning is illogical. Under the Equal Protection Clause, if a law is going to treat different people differently, then there must be a legitimate reason. If one area has a higher rate of rape and abuse, that may be a legitimate reason. But if that area’s rate of rape and abuse drops, so it is no longer higher than the rate in other areas, then there is no longer a justification for treating that area differently.

      So I think it would be logical for the Supreme Court to rule the pre-clearance provisions of the VRA unconstitutional if, in fact, the areas covered by those provisions did not have a higher rate of discrimination against minorities in access to voting.

      In my view, the problem is not with the theory, but with the empirical facts. As I understand it, those areas covered by the pre-clearance provisions still are more racist and more likely to discriminate against blacks in voting access without oversight.

      • retr2327

        Hi Steve,

        Thanks for the answer. I see your point, but here’s the thing. The people being “treated differently” under the VRA are not the minority voters in the affected areas: they’re just enjoying the same rights (i.e., to vote) as everyone else.

        Now, arguably (and no doubt it is being argued here) the state/municipal governments that are laboring under pre-clearance requirements are being treated differently from those areas without a demonstrated history of interfering with voters’ rights. But how does that fit into an Equal Protection analysis?

        All we’re really talking about is the design, and duration, of the remedy (pre-clearance) chosen by Congress for past misbehaviour by those governmental entities. The (alleged) fact that conditions have since improved should have no bearing on whether that remedy has somehow become unConstitutional; either it never was Constitutional, or it still is.

        • Now, arguably (and no doubt it is being argued here) the state/municipal governments that are laboring under pre-clearance requirements are being treated differently from those areas without a demonstrated history of interfering with voters’ rights. But how does that fit into an Equal Protection analysis

          This this this.

          It’s really hard to see how this is an equal protection issue at all (in this direction). After all, pre-clearance doesn’t preclude states from having the voting laws they want so long as they aren’t discriminatory. They just have a few extra hoops to go through. Given the resources of the states, this is not a significant burden in the worst case.

          I’m happy to preclear everywhere. Indeed, I’d be hugely happy to rip election law from the states, if I thought I could get away with it :) It’s the worst kind of federalism.

          • Well, not the worst, but among the stupidest.


    The Voting Rights Act (VRA) must be upheld by the supreme court: Discrimination is alive today unfortunately; Liberty and justice for all is openly sabotaged and the Supreme Court is inviting trouble of great magnitudnal proportions if it dares to fail its ultimate mandate: to uphold everyone’s constitutional rights.

    We not only need to keep the protections in the current Voting Rights Act (VRA), it should be expanded. The numerous despicable attempts to restrict voting made during the last election cycle are proof of that. Anyone who truly believes the VRA is obsolete needs to recognize, given last year’s voter suppression efforts, the Jim Crowe era is biding its time, lurking in the shadows waiting for an opportunity to rear its head once again.

    If properly educated and aroused to stand up against Supreme Court activism from the bench the entire nation will speak against it because the Voting Rights Act (VRA) is not about political parties; the Voting Rights Act (VRA) is about individual rights protection. Bank on it! it is time to review; the Supreme Court’s Justice Scalia’s attack on VRA as ” racial entitlements” will not stand the test of time. If the Supreme Court does not uphold the Voting Rights ACT it is no longer acting as an unbiased institution and that, its Justices, can be challenged in public. Supreme Court Justices, get up and do your job or we will make it happen! Count on it!

    Now Even if you are dumb enough to believe that all is OK with the world and there are no reasons to have the voting rights act on the books. Then why are the the parties at opposite end’s on this ? Why are the Republicans in America trying to keep people from the poles ? Well I will tell you what I think. I think there may be a dozen or two, man and women (Billionaires) in America that have the means to buy the power it wants to call all shots in this Country. The only way they can obtain this right now is get the people they want in office. To buy them so to say. But they know they can be stopped at the voting polls as proven in the 2012 election. They know the more that get out and vote there chances are reduced substantially.

    Commentator George Will knows this and should be ashamed of his views on VRA. He says VRA is 47 years old. Is that old ? I don’t think so. Look at the constitution, at that II Amendment a lot older right. SS, Medicare, still very new in the big picture. But look at who wants to change them. Not working men and women, no the big bosses. They do not like to match payments that is what this is all about. They did not like it back in the 1930s and they do not like it now. So Americans do not be fooled by the right wing opposition and all of you older people that now have this little benefit fight like h— to keep it just as it is. It just might be all there is between eating and striving !!

    The argument is that VRA is discriminatory against Southern states to require them but not other states to seek pre-clearance for voting laws; I actually agree. The Voting Rights Act should require *all* states to seek pre-clearance. After what we’ve seen the GOP try to pass in states all across the nation prior to the last 2012 election, I see no reason this safeguard against voter suppression should be limited to just Southern states as suggested by VRA of 1965 but now should be expanded to apply to ALL 50 states.

    It is urgent that whoever can go to the Supreme Court and organize peaceful, non-violent civil disobedience protests in front of the Supreme Court ASAP to do so right away!

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