Many pundits have rightly deplored Justice Scalia’s characterization of voting rights as “entitlements.” Less focus has been devoted to his blatant interpretive hypocrisy. Scalia claims to follow the original understanding of the Constitution. He, therefore, should be following the original understanding of the Fifteenth Amendment which gives Congress the power to enforce the right to vote without racial discrimination. Opponents of the Voting Rights Act argue that states with a prior record of discrimination are demeaned by a requirement that they submit any changes to their voting law to the Justice Department. Justice Breyer had the short answer to this inappropriate appeal to federalism, “What do you think the Civil War was about? Of course, it was about treating some states differently than others.”
Justice Scalia’s walk into outer darkness was triggered by the fact that the House had overwhelmingly supported the bill and the Senate had been unanimous. In order to avoid paying deference to the body constitutionally entitled to enforce the legislation, he said that the high margins of passage were
“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. . . . Even the name of it is wonderful: The Voting Rights Act, . . .Who is going to vote against that in the future?"
I would respond to Justice Scalia’s question with three others: How could one possibly deny the Fifthteenth Amendment was intentionally calculated to run roughshod over the "equal dignity" of the Southern States? How could one possibly claim that under the original understanding of the Fifteenth Amendment Shelby County, Alabama, the party bringing the action against Section 5 of the Voting Rights Law is entitled to equal dignity with other counties and states when it comes to avoiding race discrimination? After all, under Section 5, the Justice Department has blocked 240 attempted changes in Shelby County’s voting laws on the ground that they would disadvantage minorities. And, even more important, since when did it become part of the original understanding of the Constitution that the deference owed to Congress is rightly supplanted by the amateur analysis of an arrogant ideologue wearing a black robe.