Notes on a Theory…

Thoughts on politics, law, & social science

Archive for February 2013

Scalia and Racial Entitlement (Part II) – 1979

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220px-Antonin_Scalia,_SCOTUS_photo_portraitLots of attention has come to Justice Scalia’s claim about the Voting Rights Act being about ‘racial entitlement.’  [Update – including from me.] The full quote is even more bizarre.  Here’s a taste:

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. [my emphasis] Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

It’s the “it’s been written about” part that jumped out at me on second look. So I did some digging, and learned it’s true. It has been written about – by Scalia himself, in an article decrying affirmative action, 15 years after the passage of the Civil Rights Act. Read the rest of this entry »

Written by David Kaib

February 28, 2013 at 12:08 am

Justice Scalia, Voting Rights, and Racial Entitlement

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Demonstrators walk down a street during the civil rights march from Selma to Montgomery, Alabama in 1965. (Peter Pettus. 1965. Library of Congress Prints and Photographs Division. Lot 13514, no. 25. More about the photograph)

Demonstrators walk down a street during the civil rights march from Selma to Montgomery, Alabama in 1965. (Peter Pettus. 1965. Library of Congress Prints and Photographs Division. Lot 13514, no. 25. More about the photograph)

[updated below]

The Supreme Court, according to many, seems poised to strike down Section 5 of the Voting Rights Act, which would make it far easier for states and localities to engage in all manner of disenfranchisement knowing full well that it will take forever for a federal court to rule against them via the normal litigation process.  Creativity in such things is not a rare quality.

This should have been settled a long time ago.  As Justice Frankfurter said:

The reach of the Fifteenth Amendment against contrivances by a state to thwart equality in the enjoyment of the right to vote by citizens of the United States regardless of race or color, has been amply expounded by prior decisions. Guinn v. United States, 238 U.S. 347 , 35 S.Ct. 926, L.R.A.1916A, 1124; Myers v. Anderson, 238 U.S. 368 , 35 S.Ct. 932. The Amendment nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.

Ironically, the Court (via Chief Justice Warren) used Selma, Alabama to illustrate the necessity of Section 5: Read the rest of this entry »

What is Democratic Efficiency?

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Easton modelAlex Sparrow has been interested in the idea I’ve been discussing called ‘democratic efficiency.’  He encouraged me to talk a bit more about how to achieve it, and then since has written about this.  His post is well worth checking out, and in many ways parallels my own thinking. But his use of the term democratic efficiency and mine are a different, so it seems worth taking the opportunity to explain my own position a bit more clearly. I also noticed as I looked through my posts that I had been defining democratic efficiency differently – by emphasizing different elements of the idea.  This no doubt adds to the confusion.

Read the rest of this entry »

A Rolling Conversation on the State of the Union at Jubilee

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Elias Isquith has put together an interesting group of people to comment on the State of the Union, and surprisingly I’m one of them. I’ll be adding the links on this post at they come up. Check it out and maybe even comment. We are…not of the same mind on this thing.

Here’s my opening: “The fact that people have such different readings of this speech isn’t that surprising. It reads to me like it was designed to do just that – let each of us hear what we want to hear.”

Announcement: A Rolling Conversation on the State of the Union

The State of Austerity (Elias Isquith)

Ethan Gach — State of the Union Address Shows Obama’s Priorities: Everything

Robert Greer — Is Obama the Liberal Great Communicator?

David Kaib — The State of the Union Is…Ambivalent

[Update: 2-15-13 a.m.]

Shawn Gude — The Problem with Piecemeal Reform

[Update: 2-20-13 a.m.]

The State of the Union’s Quiet Radicalism  (Elias Isquith)

Shereen Shafi — “Transparency,” Drone Strikes, and the Conditions of Public Support

[Update 2-26-13 p.m.]

The State of the Union’s Crises (Alan Kantz)

Written by David Kaib

February 14, 2013 at 5:33 pm

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