Lyle Denniston looks at a provocative comment from Associate Justice Antonin Scalia about racial entitlements, and what it means in the broader scope of constitutional and congressional history. The statements at issue:
There is “a phenomenon that is called perpetuation of racial entitlement. … 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.” – Supreme Court Justice Antonin Scalia, comment from the bench on February 27, discussing the history of Congress’ repeated renewal of the Voting Rights Act of 1965.
“Entitlement: the feeling or belief that you deserve to be given something (such as special privileges).” – Merriam-Webster Learner’s Dictionary, in the second-listed definition of “entitlement.”
“We are talking about the enforcement power that the Constitution gives to Congress to make these judgments to ensure protection of fundamental rights. This is a situation in which Congress is given a power which is expressly given to it to act upon the states in their sovereign capacity.” – U.S. Solicitor General Donald B. Verrilli, Jr., responding to Justice Scalia at that hearing before the court last week.
“All men are … endowed by their Creator with certain unalienable Rights.” – The opening line of the Declaration of Independence.
We checked the Constitution, and…
It is extremely doubtful that, when James Madison sat down to compile what would become the Constitution’s Bill of Rights, that he thought he was dealing with handouts or gratuities that the government would generously provide for the people, but might later withdraw. It is also extremely doubtful whether the 40th Congress thought that when it passed what would become the 15th Amendment to end racial discrimination in voting–the amendment that Congress was enforcing with the Voting Rights Act of 1965.
Indeed, in Madison’s time, in the Founding era, virtually everyone in the national government knew that the Constitution would never have been ratified if the government did not fulfill the promise of the Declaration’s opening line about rights that were “unalienable.” From the beginning, then, the concept of civil rights has meant something very lofty, and probably permanent.