Thursday, February 28, 2013

Scalia on Voting Rights Act Section 5: Not Aging Gracefully

Scalia's pleasure at his role as a gadfly has, with privilege and age, gradually morphed into a role as a speaker of surprisingly ill considered, and poorly support contempt.

What Scalia referred to as a "racial entitlement", Congress, by a vote of 98-0, viewed as necessary to ensure a constitutional privilege: The right to vote, which, as demonstrated by 15,000 pages of evidence, was still being uniquely undercut in covered states.

Scalia's response--a monarchical one, which anyone familiar with the Separation of Powers would shudder to hear. was that Congress was unfit to make law here.

His basis here was what was essentially a psychological analysis--an area of examination for which he is poorly suited:

“I don’t think there is anything to be gained by any senator to vote against continuation of this act. ... 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?”

Such an analysis would require that the Court examine each Congressional passage of legislation for each member's personal, interior reaction to the name of the Legislation--and to judge its constitutionality on that (unfathomable) basis.

What special quality of Section 5 of the Voting Rights Act distinguished it for Justice Scalia such that the reaction of members of Congress to its name. and to its electoral and political consequences for the member, should be held up as disqualifying?

Do members of Congress not consider the electoral and political implications of other legislative acts when they vote on them? If so, has Scalia ruled all of them to be unconstitutional?

The keys here are Scalia's words "racial entitlement" combined with the above analysis. He is stating that, unlike intimidation by the force of industries, lobbying groups, or other constituencies themselves, the concerns of this particular constituency are--somehow--invalid.

The use of Scalia's criteria for Section 5 of the Voting Rights Act would, apart from undermining Congress's legislative power for that of an increasingly crankily grandiose Justice, invalidate most legislation, which is enacted by members of Congress for a variety of personal, electoral and political purposes.

 Scalia pic: