Monday, March 4, 2013

The Perpetuation of a Racial Entitlement

On Wednesday, February 27, 2013, the United States Supreme Court heard oral argument on the case of Shelby County v. Holder, which is a case where an Alabama county is directly challenging the federal government's authority to regulate state voting laws under the federal Voting Rights Act of 1965.  The oral argument got pretty heated not only between the Justices and the attorneys arguing the case, but also between the Justices themselves.  The subject of racial discrimination has been a troubling issue for this country ever since its founding, and that theme has certainly proven to hold true on the Roberts Court.  Since John Roberts has taken over as Chief Justice for the Supreme Court, the Court has, by 5 to 4 margins, narrowly decided that the time for government intervention to prevent racial discrimination is over.  Private citizens should be able to work out their own racial discrimination problems without the pesky government getting in the way.  Indeed, in the case of Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), Chief Justice Roberts famously wrote:  "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."  In other words, it's time for the government to stop trying to correct the problems of past discrimination.  Not to be outdone by the Chief Justice, Justice Antonin Scalia (arguably the Court's most Conservative Justice next to Clarence Thomas) said this last Wednesday during oral argument of the Shelby County case:

Well, maybe it was making that judgment, [Solicitor General 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. 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.
Before we jump into Scalia's quote, let's understand a few basics about how government and the Constitution work.  Our federal government, as powerful as it may seem, is actually a government of "limited powers."  Meaning, it is limited by the text of the Constitution.  Every federal law passed by Congress and signed by the President must tie back to a clause in the Constitution.  For example, the federal government can create our military because Article I Section 8 of the Constitution plainly says that it can.  Conversely, the federal government could not make a law saying that every Friday is Hawaiian T-Shirt day because there is no clause in the Constitution that says anything about Hawaiian T-Shirts.

State governments, on the other hand, are governments of unlimited powers.  Meaning, they can make laws about anything they long as those laws do not conflict with the Constitution.  For example, if a state wanted to it could pass a law changing the drinking age from 21 to 31 because there's nothing in the Constitution that would conflict with that.  A state could also pass a law that there will be no state income tax on its residents because there's nothing in the Constitution that would conflict with that either.  However, a state could not pass a law bringing back slavery, because the 13th Amendment of the Constitution strictly prohibits slavery.  But what about the question before the Court in the Shelby County case?  Can a state pass a law that prohibits certain races of people from voting?  And, more importantly, if a state does pass a law that stops certain races of people from voting can the federal government point to any clause in the Constitution that would enable it to step in and prevent that state from doing so?

The answer for the federal government is "yes."  The 14th Amendment of the Constitution has a clause called the "Equal Protection Clause" which basically says that no state is permitted to pass any state law that discriminates between citizens on the basis of race.  To make the enforcement of this clause crystal clear for future generations of Americans like us, Section 5 of the 14th Amendment plainly states that: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." 

In addition to the 14th Amendment, the federal government can also answer "yes" to this question by pointing to the 15th Amendment of the Constitution.  The 15th Amendment, in a nutshell, says that neither the federal government nor the states are allowed to pass voting laws which discriminate on the basis of race.  Similar to the 14th Amendment, Section 2 of the 15th Amendment plainly states that: "The Congress shall have power to enforce this article by appropriate legislation."

Which brings us to the origins of the Voting Rights Act of 1965.

Keep in mind that the 14th and 15th Amendments were both passed and added to the Constitution back in 1868 and 1870, respectively.  In other words, people have known about them for a while.  That includes people who didn't (and still don't) think that Black people should have the right to vote.  But they knew that this was the law of the land which presented a bit of a dilemma for the racist population of our country.  I mean, for goodness sakes, how are the bigots in our society supposed to keep Blacks from voting in their respective states if they can't pass laws that say "Black people can't vote in our state"???    Aha!  I've got it!  We'll pass laws that don't mention the word "Black" or "Race" at all.  Instead, since we know that Black people by and large do not own property, we'll pass a law that says you have to own property in order to vote.  And since we know the Blacks in the South by and large have no formal education, we'll pass a law that says you have to be able to read at a certain level in order to vote.  And because we know that Black people for the most part don't have a lot of money, we'll pass a law that says you have to pay a certain tax in order to vote.  Brilliant!!!

These laws (also known as "Poll Taxes" and "Literacy Tests"), which did not textually discriminate against the voting rights of Blacks or other minorities, still, in effect, discriminated against the voting rights of Blacks and other minorities. The states which drafted these laws knew that these laws would keep Blacks and other minorities from voting, even though the laws literally did not say the words "Black people are not allowed to vote in our state."   In other words, they achieved in effect what they were not allowed to achieve in plain text.  This went on for nearly 100 years until finally, in 1965, Congress woke up one day and said "you guys are not fooling anybody with these laws.  We're shutting you down."

Enter the Voting Rights Act.  The Voting Rights Act is a federal law passed by Congress in 1965 which took a look at every state and county in the country (primarily located in the South) that had been using these discriminatory "poll tax" laws and prevented these states from enforcing those laws anymore.  Not only did it outlaw those laws, it went a step further in Section 5 and told those states and counties which it had just busted for discrimination that from that point forward those states and counties would be required to get "preclearance" from the federal government before they could change their voting laws ever again.  As you can imagine, this pissed the bigots in state government off something fierce and they've been trying to find a way to invalidate the Voting Rights Act ever since.

Which brings us full circle back to Scalia's quote from up above.  Notice the language he uses.  The Voting Rights Act was passed, according to Scalia, "at a time when the need for it was so much more abundantly clear."  In other words, this law was passed back when racial discrimination existed, and we all know that there's no more racism in America.  After all, we have a Black President.  And nobody has ever made any racially offensive remarks towards our Black President since he took office.  Right?

But that's not even the worst part about Scalia's quote here.  The worst part is the premise that his argument relies on when he says that the Voting Rights Act essentially boils down to "racial entitlement" for Blacks and other minorities.  Not only is this devoid of any truth, but it reveals Scalia's racial resentment towards anything that he perceives to be unfair towards Whites.  And in particular, towards White men.  We've seen this time and time again from Scalia. The most recent case that stands out in memory was Ricci v. DeStefano in 2009 where Scalia and the other conservative members of the Court rallied to support White fire fighters who claimed that affirmative action was taking jobs away form good God-fearing White men.   Despite mountains of evidence of racial discrimination in that fire department, Scalia used rhetoric that basically suggested that any law that seeks to correct past discrimination against minorities amounts to "special treatment."

Just so we're clear, Whites have a documented history of using government to discriminate against Blacks and other minorities in this country since 1776 (and beyond), and if any effort is made to correct those past wrongs then those efforts are automatically deemed as "special treatment" and "racial entitlements" for minorities.  Got it.

1. What do you make of Scalia's quote?
2. What should the role of government be in solving racial discrimination with respect to the right to vote?
3. What should the role of government be in solving racial discrimination in general?
4. Are laws that seek to correct past discrimination against minorities the equivalent of giving minorities "special treatment"?
5. Is the Voting Rights Act of 1965 unfair towards White people?


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