Notes on a Theory…

Thoughts on politics, law, & social science

Scalia and Racial Entitlement (Part II) – 1979

with 3 comments

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.

But I think it unnecessary to describe the Restorative Justice Handicapping System any further. I trust you find it thoroughly offensive, as I do. It, and the racist concept of restorative justice of which it is merely the concrete expression, is fundamentally contrary to the principles that govern, and should govern, our society. I owe no man anything, nor he me, because of the blood that flows in our veins. To go down that road (or I should say to return down that road), even behind a banner as gleaming as restorative justice, is to make a frightening mistake. This is not to say that I have no obligation to my fellow citizens who are black. I assuredly do–not because of their race or because of any special debt that my bloodline owes to theirs, but because they have (many of them) special needs, and they are (all of them) my countrymen and (as I believe) my brothers. This means that I am entirely in favor of according the poor inner-city child, who happens to be black [happens to be black?], advantages and preferences not given to my own children because they don’t need them. But I am not willing to prefer the son of a prosperous and well-educated black doctor or lawyer-solely because of his race-to the son of a recent refugee from Eastern Europe who is working as a manual laborer to get his family ahead. The affirmative action system now in place will produce the latter result because it is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need; that is to say, because it is racist. [my emphasis]

Disease as Cure: In Order to Get beyond Racism, We Must First Take Account of Race” (1979)

That “happens to be black” line seems to me to be a really telling phrase.

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Written by David Kaib

February 28, 2013 at 12:08 am

3 Responses

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  1. As I read the happens to be black line, Scalia is saying that a 1) poor inner-city child 2) who is black, is owed preferential and special treatment but only because that child is (1), not because that child is (2).

    Matt Bruenig

    February 28, 2013 at 9:05 am

    • I read it that way too, but what it misses is that the racialized inner city is an intentional creation of public policy. Scalia consistently sees happenstance as the cause of racial disparity, as if it could have just as easily gone the other way.

      David Kaib

      February 28, 2013 at 9:20 am

      • I don’t think his position turns on denying that the racialized inner city is an intentional creation of public policy. His position as something like: whatever the reason for being disadvantaged, it is the being disadvantaged that entitles you preferential treatment. So if you are black and disadvantaged — fully conceding that you could be disadvantaged *because* you are black and have suffered racism — you should get preferential treatment, but, still, only because you are disadvantaged.

        Really to cut to the chase, Scalia is asking you to make a case for giving preferential treatment to a very rich Black kid. Racism is a heavy cause of Black poverty and such, but clearly racism did not cause *that kid* to be poor. We know this because he isn’t poor.

        I think there are good reasons for giving preferential treatment to such a kid, but they are wildly different reasons from the case of a poor black.

        Matt Bruenig

        February 28, 2013 at 9:40 am


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