The Aporetic

At the moment the Supreme Court is hearing argments for and against the Voting Rights Act. The Act, passed in 1964, gives the federal government supervisory authority over elections in places where there has been a long pattern of disfranchisement, e.g. “the South.”

Scalia made this comment about the Voting Rights Act:

 I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

It’s difficult to be a historian of the US and not be flabbergasted by this comment. Because Scalia is right–for nearly all of its history, the US has perpetuated racial entitlements with the greatest enthusiasm. Those entitlements have been for entirely and overwhelmingly for white people.

Let us start with the well known phenomenon of racial slavery, which created a massive entitlement, the fact that white people could not be enslaved. That lasted till 1864. Let’s add the naturalization law of 1795, which stated that naturalized citizenship was only available “to free white persons.” We can along the way note that all states forbid free black persons from voting after 1830. Let’s add to that the Dred Scott case, in which the Court insisted “the negro had no rights which a white man was bound to respect.”  And while we adding that we can all “black up” and perform a minstrel show.

If we are tired of the white/black issue, we can take a look at the Indians, or the Chinese Exclusion acts. Then we can jump to legal segregation, established by law in every southern state and by custom in every northern state in 1the 1890s. We could include the phenomenon of spectacle lynching. We can add the northern race riots, and redlining; we can go out to the newly built Levittown in the 1950s and find out they won’t sell to black people.

We can add to that formal legal disenfranchisement, which prevailed from about 1900 till–the Voting Rights Act.

So yes, once you establish those legal entitlements it is very difficult to get out of them through the normal political process. Scalia seems bound and determined to prevent their removal.

Scalia’s comment is staggering, morally grotesque, deaf to the facts of history. For Scalia, the fact that the federal government protects black people’s right to vote, in places where they were denied that right for 200 years, amounts to a form of “racial entitlement” for black people. It’s an incredible, contemptible statement.

I can see an argument against the voting rights act. It singles out some states based on their history, and they could reasonably claim that they have overcome that history. That’s not the argument Scali is making. he’s claiming that voting for black people constitutes a “racial entitlement.”

Critics of this comment have pointed out that he seems to be violating his claim to be a “originalist,” that is, faithful to the Constitution as its writers intended, (whatever that means) because he also said that “this is not the kind of thing you can leave to Congress.”  Scalia things congress will reauthorize the Act because it’s afraid of being branded as racist. But the 15th amendment says the following:

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.

Clearly it MUST be left to congress. Scalia here is being an “originalist” in the sense that his critics always suspected: he appears to regard securing black people’s right to vote as a regrettable deviation from the framer’s intent.