Scalia On “Perpetuation Of Racial Entitlement”

Christopher Caldwell wrote in 2009:

“One moves swiftly and imperceptibly from a world in which affirmative action can`t be ended because its beneficiaries are too weak to a world in which it can`t be ended because its beneficiaries are too strong.” 

You might think that a black candidate winning back-to-back Presidential elections is evidence that the beneficiaries of affirmative action in voting arrangements are no longer too weak. But only a few wackos like Justice Scalia have drawn that inference. The bulk of respectable opinion has moved unthinkingly to the natural assumption that Obama`s power proves that white people are racist losers, so of course the laws must continue to favor blacks over whites, because whites are evil. Didn`t you read the election results? If whites weren`t evil, they wouldn`t be losers, now would they?

The Supreme Court is dealing with this situation with the Voting Rights Act. Back in 1965, this was passed to prevent Southern states from keeping blacks from voting and it rapidly succeeded, creating a powerful black political class to look after their own interests. Nevertheless, Congress has continued to renew the VRA, with additions such as in 1982 the requirement to gerrymander districts to such a black or Hispanic supermajority that they will elect black or Hispanic legislators, no matter how corrupt or comical. (This benefits Republican politicians in various ways, although not the general welfare.)

Much of the law, however, is of the familiar type that I can best explain by a driving analogy. As you drive down the road, you tend to drift left or right and have to constantly correct in the opposite direction to stay on your path. Title 5 of the VRA is like a governor on your steering wheel that blocks corrections to the right. Since the drifting is very small, the overall impact is hard to notice at any point in time, but ultimately all the little racheting to the left puts you on the wrong side of the street, head on into traffic.

In 2006, Congress renewed the VRA 98-0 for 25 years, which will keep some states and districts under federal trusteeship until at least 66 years after the original VRA. And who is going to dare vote against renewing it in 2031? Who will admit then that its time to take the Scarlet Letter off the South, since the evilness of white Southerners is becoming the central myth of our society, a sin that can never be forgiven or forgotten?

That the Voting Rights Act is both a substantive thumb on the scale of elections, and piece of symbolism in the reigning civic religion, worries Justice Scalia, although few others can comprehend his concerns. From the questioning in the Supreme Court:

JUSTICE SCALIA: Indeed, Congress must have  found that the situation was even clearer and the  violations even more evident than originally, because  originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these States were violating the Constitution. Do you think that`s true?

MR. REIN: No. I think the Court has to -­ … 

JUSTICE SCALIA: Or decided that perhaps they`d better not vote against it, that there`s nothing, that there`s no — none of their interests in voting against it. …
JUSTICE SCALIA: That will always be true forever into the future. You could always say, oh, there has been improvement, but the only reason there has been improvement are these extraordinary procedures that deny the States sovereign powers which the Constitution preserves to them. So, since the only reason it`s improved is because of these procedures, we must continue those procedures in perpetuity. … 

JUSTICE SCALIA: Well, maybe it was making that judgment, Mr. Verrilli. But that`s — that`s a problem that I have. This Court doesn`t like to get involved in — in racial questions such as this one. It`s something that can be left — left to Congress. The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. 

 And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don`t think that`s attributable to the
fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It`s been written about.

I`m interested in who has written about “perpetuation of racial entitlement” — obviously, that`s what Caldwell is writing about, Sowell has written about the subject, I have — but I don`t see the phrase many places in Google Books.

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. Even the name of it is wonderful: The
Voting Rights Act. Who is going to vote against that in the future? … 

Scalia`s insights have evoked howls of protest: how dare an evil old white man favor equal treatment under the law. Doesn`t he know he`s a loser?