Friday, March 01, 2013

Justice Scalia’s Warped Political Process Theory: Not Much Democracy, A Lot of Distrust

David Gans

Justice Antonin Scalia has long been hailed as the most celebrated conservative defender of following the text and history of the Constitution, but today he seems more than willing to jettison – rather than follow – the parts of the document he does not like.  Only a few years ago, he derided the Fourteenth Amendment’s Privileges and Immunities Clause as junk.  Now, Scalia is aiming his sights on the Enforcement Clause of the Fifteenth Amendment, which expressly gives to Congress the power to “enforce” by “appropriate legislation” the Constitution’s ban on racial discrimination in voting. This week, during oral argument in Shelby County v. Holder, Justice Scalia argued that – no matter what the Constitution says – the Court could not “leave to Congress” protection of minority voting rights.  He boldly asserted that the Voting Rights Act and its renewals in 1970, 1975, 1982, and 2006 were nothing more than the product of “perpetuation of racial entitlements. . . . Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process.”   Because of this claimed deficit in the political process, Justice Scalia argued, “this is not the kind of a question you can leave to Congress.” 

John Hart Ely must be spinning in his grave.  The idea behind Ely’s celebrated Democracy and Distrust was that the Court had a constitutional obligation to “clear the channels of political change” and “facilitate the representation of minorities” – not obstruct and retard them.  This is an obligation that Ely rooted in the Constitution’s text and the fact that more Amendments are dedicated to protecting the right to vote than any other right.   “Extension of the franchise to groups previously excluded has been the dominant theme of our constitutional development since the Fourteenth Amendment, and it pursues both of the broad constitutional themes we have observed from the beginning: the achievement of a political process open to all on an equal basis and a consequent enforcement of the representative’s duty of equal concern and respect to majorities and minorities alike.”  Or, as Debo Adegbile put it during the Shelby County argument, “our right to vote is what the Constitution is all about.”  

In Scalia’s warped view, this is exactly backward – the Court’s solicitude should lie not with voters subject to state efforts to suppress and dilute their votes, but rather with poor state and local governments, who would not have to contend with the Voting Rights Act if only the political process worked properly where “racial entitlements,” such as our most iconic and successful civil rights law, are at issue.  It should be pretty obvious who gets the better of this debate.  While Ely’s point that the political process will not work well for discrete and insular minorities subject to rule by hostile, ruling factions goes all the way back to the Federalist Papers and finds abundant support in our nation’s long history of racial discrimination, Justice Scalia’s “phenomenon” of the “perpetuation of racial entitlements” seems a product mainly of his disturbingly fertile imagination.  One would expect more of a Justice who purports to be bound by the Constitution’s text and history.  

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted at Text and History.


I read that some spectators "gasped" with Justice Scalia's remark. Query: Did anyone note the reaction, if any, of Justice Thomas? Was this an effort by Scalia to keep Thomas in line?

Justice Scalia's assertion that the VRA and its renewals were nothing more than the product of"

"perpetuation of racial entitlements. . . . Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process.”

deserves a graph going back to the beginnings of America to contrast white "racial entitlement" with African-Americans as slaves, then the Civil War, followed by Jim Crow through Plessy v. Ferguson despite the Reconstruction Amendments, continuing to 1954 with Brown v. Bd. of Educ., with Jim Crow continuing to the 1960s Civil Rights Acts, including VRA, and even after with the Nixonian Southern Strategy, remnants of which where on display in the 2008 and 2012 elections. Perhaps Scalia could pinpoint exactly when African-American racial entitlement came about to compare with the span of white racial entitlement. Maybe Scalia could get some help on this from Justice Thomas. (I assume Scalia does not believe that the Civil War was part of "the normal political process.")

I suppose "by appropriate legislation" can't be a complete blank check, since it implies that some forms of legislation would be inappropriate. And are people really impressed by "gasps"? I'm usually more impressed by people making reasoned arguments.

Hey, Brett, how about Tom Toles' reasoned argument with his WaPo political cartoon on March 1, 2013, available at:

Perhaps Brett overlooked the reasoned argument of Joey Fishkin's post of Wednesday, 2/27/13 at this Blog, especially its closing paragraph.

And Brett might consider the reasoned argument at"

"Jim Clyburn: Antonin Scalia Rejects Voting Rights Act Because He's 'White and Proud'"

Rep. Clyburn (D, S.Car) was active in the early days of the Civil Rights movement in the 1950s-60s in South Carolina. Note the reference to Sen. Strom Thurmond back in 1957 on his perceived wonderful plight of negroes. It should be noted that Rep. Clyburn was too discrete to reference current Sen. Lindsey Graham's (Cracker, S. Car) complaint during the 2012 presidential campaign about the shortage of voting angry while men. Tom Toles' cartoon displays an angry white man.

I wonder if Mr. Scalia isn't working to devise a conservative counter to Brown V. Board, viz his reference to uncited "things I've read" concerning this alleged sociological phenomenon of entrenched entitlement. That is, he can point to Brown V and say "look, you accepted the sociological argument there, why not here?" I'd also like to see more comment on Mr. Scalia's implicit assumption that no Virginia Senator would ever vote for the Voting Rights Act in a world where sociological deus ex machina are not in operation. Who says? I always thought all citizens benefited from an end to prejudice and discrimination, not just some racial or cultural class.

The VRA renewal in 2006 included the Senate vote of 98-0. Query: Were there vacancies in the Senate at the time? If not, which Senator(s) did not have a recorded vote?

Fiddlin Bill strikes a chord with his reference to Brown v. Bd. of Education (9-0). There aren't very many prepared to directly challenge Brown, even originalists. This doesn't mean that there isn't an underlying resentment of Brown, as it led to the Civil Rights movement, including the VRA of 1965. With Nixon's and the GOP's Southern Strategy in 1968, the resentment of Brown continued. It is only in fairly recent years that Brown is accepted, but with resentments remaining. So instead of focusing this resentment on Brown directly, the focus is on acts following Brown, now the VRA renewed in 2006 with very little opposition even in the House.

As to Scalia's "things I've read," perhaps included is Sen. Lindsey Graham's (Cracker, S. Car) expressed concern during the 2012 presidential election.

By the way, I wonder if Scalia's "things I've read" are included in the record before the Court. Also, keep in mind Scalia's policy on statutory interpretation to ignore legislative history but apparently he can discern what was - or was not - in the minds of Senators voting in the 2006 renewal of VRA.

Scalia was responding to the argument that correcting the selective and increasingly arbitrary application of VRA supervision is a political issue better left to Congress.

Scalia correctly, if inelegantly, observed that the VRA has essentially developed into a nearly untouchable "racial entitlement."

If conservative Congress critters attempted to lift the VRA from the South on the ground that it is no longer necessary, then the left would note some minor alleged voting transgressions and then repeatedly beat them over the head with the racial club, falsely accusing them of wanting a return to the days of Jim Crow. Indeed, these attacks are being constantly launched at the conservative justices considering this case.

If conservative Congress critters attempted to apply the VRA to the entire country on the ground that minor alleged voting transgressions happen everywhere, then the Congress critters from the rest of the country would howl. Remember that the only reason the VRA passed is because it was aimed at a minority of congressional districts in the South.

There is no practical chance of congressional reform. The Court will do it or no one will.

Scalia is referring to the VRA as an example of "affirmative action". Why am I hearing so few arguments saying that its not?

The reconstruction amendments were written in neutral language but the laws passed by the authors were discriminatory. Maybe they needed to be.
See my comment here

But why not at this point explicitly separate defense of the VRA from a defense of positive discrimination?

Speaking of "ineligantly," as our yodeler was of Scalia, our yodeler's defensive:

"If conservative Congress critters attempted ... "yada, yada, yada

is quite inelegant about the people he has supported in the past (to wit, during the Bush/Cheney years when the VRA was renewed in 2006).

Contrast our yodeler's interpretation/construction of Scalia with The New Yorker's Amy Davidson's 2/28/13 post:
"In Voting Rights, Scalia Sees A 'Racial Entitlement'"


FWIW, I would have called the VRA a "racial third rail."

Regardless of what you call it, Scalia offered a legitimate point.

Amy Davidson's post at The New Yorker closes with this:

"The role of the Court, Scalia seems to be saying, is to step in when members of Congress are scared of being called racist. Scalia does not seem to be afraid of that."

This seems fairly close to how our yodeler has construed Scalia.

This is what I call it: Scalia's Roger Taney moment.

Ely's use of Carolene Products footnote 4 is a good reference point. It occurred to me, too. But let's be clear: Scalia did not stand Ely on his head. He mocked him. His rule is triggered by the same facts as Ely's: popular and legislative hatred of a discrete and insular minority. In fact I have found it hard to explain Scalia to nonlawyers without having to use the N-word; "Virginian" just doesn't capture it. Of course I assume he and Thomas use the same toilet and fountain. He is no racist. For him it's just a calculus.

Scalia also put me in mind of Guido Calabresi's theory of the same vintage: that judges should have the power to strike laws (e.g. on contraception) that fall into desuetude, are no longer enforced but remain on the books because of political inertia. Here the difference is that section 5 is continually and evermore resoundingly reenacted and is still a vital anti-discriminatory tool – as Scalia is fully aware. For that perverse reason, it is no law. The louder the expression of political will, the deafer his ear.

These and like comparisons bring out the depth, breadth and intensity of Scalia's visceral hatred of democracy. It is nothing new; it's where he lives. In Bush v. Gore he could barely contain himself in telling us there was no constitutional right to vote for president, dancing impishly in the muck and mischief it opened up to him. Since then he's declared the seventeenth amendment a travesty, an assault on state sovereignty. By now we know his hierarchy: people yield to legislatures and both bow to judges. But not just any judges: as any fool can see, this is about seeing to it that things in general are settled forever.

This apple's rolled back under the tree, if it ever left the shade. His father swore an oath to Mussolini and schooled Little Antonin alongside the kids of other Italian-American fascists of the day. His fear and loathing depend less on things he's read than on things he's written, said, and done.

(By the way, does anyone here remember the time John Roberts showed up at oral argument to bubble about what he just read on the internet? He runs a tight ship.)

My nominally conservative friends, so eager to demand a limiting principle between healthcare and broccoli, are asked to explain if they care to exactly what it is that Scalia can't say after this ukase. I see a clear road to fascism. I wonder if they do too, whatever their name for it.

"I suppose "by appropriate legislation" can't be a complete blank check, since it implies that some forms of legislation would be inappropriate."

Sure Brett, but who should decide when it is inappropriate? Why wouldn't it be the Congress?

"the only reason the VRA passed is because it was aimed at a minority of congressional districts in the South"

The history of problems in those districts wasn't a reason?

"I would have called the VRA a "racial third rail.""

I'm not sure why this should ever be a constitutional argument, that something is really popular with the elected representatives of the people makes it constitutionally suspect? That the congress found these measures to be 'appropriate' overwhelmingly and consistently hardly seems to be a flag against them...


"Sure Brett, but who should decide when it is inappropriate? Why wouldn't it be the Congress?"

Because "No man should be the judge in his own case"? If you leave it up to Congress whether their own legislation is "appropriate", you might as well have left out the word.

Section 5 is a form of affirmative action, in so far as it demands the creation of "majority-minority" districts, rather than that districting be done entirely without regard to race. So I think Scalia is quite correct about that.


Recall that Justice Scalia served as "judge" on whether or not to recuse himself in a case involving then VP Dick Cheney.

"It's time for a revisit to DeNovo for my comment:


In that duck blind
Lady Justice unveils
Her traditional blindfold
For these bonding males:
Scalia and Cheney,
Shotguns at attack,
Taking aim at Justice,

Posted by: Shag from Brookline at March 23, 2004 07:28 AM

Judge not, lest ye be judged.

"Because "No man should be the judge in his own case"? If you leave it up to Congress whether their own legislation is "appropriate", you might as well have left out the word."

Brett, I get what you are saying as a philosophical matter, but as a Constitutional matter it's not uncommon for direct grants to government bodies be read to leave only that grant to police the power (such as Art. I, Sec. 5). The Founders may well have thought these institutions would have the integrity to do so.

It appears that Justice Scalia feels free to say anything he wants from the bench; to question the fitness of the Congress to legislate; to ignore the Enforcement Clause of the Fifteenth Amendment; and to mock the rights of voters to free and fair elections.

And yet, without fair elections, can we have a representative government?

It is disturbing to see someone with so much power and so little regard for acting responsibly.

"It is disturbing to see someone with so much power and so little regard for acting responsibly."

I think much the same when I see a camera pan across the floor of Congress. Acting responsibly is in short supply in all three branches at the moment, and probably shortest in Congress, which has delegated such an enormous fraction of it's power to regulatory bodies and the executive, to avoid just exactly responsibility for making decisions itself.

It's true, without fair elections, can we have representative government? I would say, no. But is section 5 really advancing the cause of fair elections anymore? The mandate for "majority-minority" districts is nothing but a mandate for gerrymandering, and racially discriminatory gerrymandering at that. Meanwhile preclearance is being used to block things like voter ID requirements, already ruled constitutional in non-covered states, and not facially discriminatory. It seems preclearance is being used more to advance partisan motives than anything to do with preventing racial discrimination.

It's a blunt tool, designed for a blunt time, and like affirmative action, reaching it's 'sell by' date. Surely if the law passed by such absurd margins, then if it's struck down on a clear basis, Congress can swiftly re-write it to address the Court's concerns.

Or if they can't, Scalia has made his point.

Brett ignores the long, long period of white "racial entitlement" which seems to be threatened if one listens to Sen. Lindsey Graham (Cracker, S. Car), Justice Scalia, our yodeler and Brett. Surely Brett won't deny that the Reconstruction Amendments failed to level the playing field through Plessy up to Brown v. Bd. of Educ. in 1954; that even after Brown, which was strongly challenged in the former slave states, Jim Crow continued on. So when, Brett, did the tipping point occur leveling the racial playing field? Surely Brett doesn't believe that the Civil Rights Acts of the 1960s instantaneously leveled the racial playing field. Perhaps Brett might point to the 2008 election of Obama as the tipping point. But consider steps taken by certain states and the Court (e.g., Citizens united) to make voting by some more difficult. Perhaps Brett might point to the 2012 reelection of Obama as the tipping point. But what about efforts by some states (including PA) to make voting by some more difficult. And such efforts continue after the 2012 elections.

So it is fairly easy to measure, in centuries the period of white "racial entitlement" to compare with the relatively short period of time beginning in 1954 and then in the 1960s with efforts to attempt, after centuries, to level the racial playing field, which has not as yet been achieved.

Yes, as I noted earlier, this is Scalia's Roger Taney moment. Those changing demographics are so annoying and must be pre-empted by the Court to maintain white "racial entitlement." Perhaps Justice Thomas will be doing some soul searching.

By the way, Brett's:

"I think much the same when I see a camera pan across the floor of Congress."

raises how the public might have felt if a camera panned across the Justices and spectators at oral arguments on Shelby County, especially Scalia's Etna-like eruption (which I assume he planned). Perhaps Scalia would have done as he did even if cameras were permitted in the Court.

Brett, you simply cannot deny the necessity of preclearance to have free and fair elections.

What Section 5 does that Section 2 cannot is provide relief from discriminatory changes in local election law that occur just months or days before the election.

The same county that is challenging the VRA had 240 discriminatory voting measures recently blocked by Section 5 and Section 2 challenges!

Scalia no longer considers himself a judge. He is in judgement of the wisdom of the enforcement clause of the 15th amendment, as well as the fitness of the Congress to legislate.

You know, I actually *live* in the South, moved to a suburb of Greenville in 2008, after losing my job in Michigan. I honestly don't know what this place was like before I was born, but I see no evidence around me that it's any more racist than Michigan, today.

I am of the "you stop discrimination by ceasing to discriminate" school of thought, a school that's widely reviled. But we must eventually adopt that view, or else discrimination is forever.

I hope "things I read" gets cashed in, and that is doesn't turn out to simply be something Mr. Graham said. That would be a silly reference. Scalia's argument implies some quasi-scientific authority (I guessed political scientist, or sociologist)--a variant of a Stockholm Syndrome problem, this time in Congress. Presumably, by the way, Graham was one of the 98 "Yea's." Surely he could testify?



"The same county that is challenging the VRA had 240 discriminatory voting measures recently blocked by Section 5 and Section 2 challenges!"

Do you have a link to these "discriminatory voting measures?"

I suspect almost none of them involve an actual intentional denial of the right to vote.

"Things I read" refers I think to things he wrote.

Perhaps Brett could inform us of where in Michigan he worked/resided. (I'm not interested by whom he was employed, just locations.)

I have no problem with the Supreme Court having the power to determine what legislation is "inappropriate." I have a problem with Scalia's standard of appropriateness.

Rural Lapeer county, to satisfy your curiosity, though I spent quite a bit of time in Roseville, too, as my mom lived there.

Thanks, Brett, for the info. I had the thought that possibly you came from Detroit. My interest was for comparative purposes based on your:

" ... but I see no evidence around me that it's [suburb of Greenville] any more racist than Michigan, today."

So here's something on Michigan I located titled "Michigan A Great State, Except For All The Racists":

So maybe it's the same old same old.

Jurisdictions requiring preclearance

States and counties requiring preclearance under Section 5 of the VRA as of January, 2008. Several small jurisdictions have since bailed out, but the majority of the map remains accurate
The jurisdictions listed below must be precleared (see 28 C.F.R. part 51 appendix)
Alabama, except for the city of Pinson
Georgia, except for the city of Sandy Springs
South Carolina
Texas, except for Jefferson County Drainage District Number Seven and Northwest Austin Municipal Utility District Number One
Virginia, except for 24 counties (Amherst, Augusta, Bedford, Botetourt, Carroll, Craig, Culpeper, Essex, Frederick, Grayson, Greene, James City, King George, Middlesex, Page, Prince William, Pulaski, Rappahanock, Roanoke, Rockingham, Shenandoah, Washington, Warren, and Wythe) and six independent cities (Fairfax, Harrisonburg, Manassas Park, Salem, Williamsburg, and Winchester)
California: Kings (except for Alta Irrigation District), Monterey, Yuba (except for Browns Valley Irrigation District)
Florida: Collier, Hardee, Hendry, Hillsborough, Monroe
New York: Bronx, Kings (Brooklyn), New York (Manhattan)
North Carolina: Anson, Beaufort, Bertie, Bladen, Camden, Caswell, Chowan, Cleveland (except for the city of Kings Mountain), Craven, Cumberland, Edgecombe, Franklin, Gaston, Gates, Granville, Greene, Guilford, Halifax, Harnett, Hertford, Hoke, Jackson, Lee, Lenoir, Martin, Nash, Northampton, Onslow, Pasquotank, Perquimans, Person, Pitt, Robeson, Rockingham, Scotland, Union, Vance, Washington, Wayne, Wilson
South Dakota: Shannon, Todd
Michigan: Clyde Township (Allegan County), Buena Vista Township

I have to say the idea that anti-discrimination initiative, which merely prohibited racial discrimination by government was "racist" is one of the more Orwellian examples of modern political discourse. And the basis upon which it was struck down was the craziest thing since that case in Colorado.

No, South Carolina does not seem appreciably more racist than Michigan, particularly if you're talking REAL racism, rather than simply not knuckling under to the Affirmative Action mafia.

356E tivirhoBrett's concept of "REAL racism" might not even cover Selma and Birmingham. And he ignores the timeline of history that addresses centuries of white "racial entitlement" with only a relative short span since Brown (1954) and the 1960s Civil Rights Acts without the racial playing field being leveled. So I guess the Yahoo from Michigus segued into a S. Car. Cracker facilely.

For those interested in Michigan, just Google "Racism in Michigan" for some hits. South Carolina we all know about from its Red Queen Sen. Lindsey Graham.

I don't want to hear about centuries of this or that from anybody but Mel Brooks. Seriously, give it a rest. It's nothing but the liberal cry of "Affirmative action today! Affirmative action tomorrow! Affirmative action forever!"

It's nothing but an admission that you never mean to permit government mandated racial discrimination to end.

Brett channels Mel Brooks' "Hight Anxiety" with the possible leveling off of centuries long white "racial entitlement." Irrationally Brett seems to fear for his safety, economic and otherwise. Brett fears fairness and justice as a zero sum game, as in Brett's mind government efforts to level the racial playing field after so many centuries constitutes " ... government mandated racial discrimination ... " And Brett doesn't want to hear about what happened for centuries fostered by governments (federal and states) to protect white "racial entitlement."

Rachel Maddow has it right -- Scalia is a troll.

Brett's reference to Mel Brooks reminded me of a thought I had some years ago and through Google I linked to Jack Balkin's post on 3/1/08 (when Jack permitted comments) "Who Cares About John McCain -- George Washington Is Unconstitutional." Here's a comment of mine:


Removing commas originally in the text seems to be an originalist method to impose intent, meaning, understanding, etc, that may not have originally existed to support their positions, inducing comas with their rhetoric.

What we need is a Mel Brooks version of his 2000 year old man schtick with Mel playing a Founder and being asked about original intent, etc, on certain aspects of the Constitution. Who might we recommend as Mel's straight (or gay) man?"
# posted by Blogger Shag from Brookline : 11:19 AM



E.J. Dionne, Jr.'s WaPo column (3/3/13) "In church and country, a crisis of confidence" discusses issues within the hierarchy of the Roman Catholic Church presently, between those described as Kingdom Catholics and others as Communion Catholics, with some parallels in US. politics between conservatives and liberals. While E.J. does not reference the Court, consider that 6 of its members are Catholics. Justice Sotomayor could be described as a Communion Catholic and the other 5 as Kingdom Catholics based upon oral arguments in Shelby County (although Justice Thomas was silent).

I thought it was a fairly clear reference to the "2000 year old man"; Who else could have experienced hundreds of years of discrimination?

Apparently the word "schtick" is foreign to Brett. Oy Vey!

Perhaps Brett can inform us for how many years he personally has actually suffered from discrimination because of Scalia's perceived "racial entitlement" claim.



There are some real senses in which past discrimination can still produce present discriminatory effects.

Consider for example wealth. The wealth that many Americans possess is often tied to inherited wealth (such as houses and such). If your grandfather was black living under Jim Crow and your great grandfather lived under slavery, then you likely won't have the same chance of similar accumulation of wealth than if your ancestors were white.

This can have political effects. There are things that can be an advantage in winning office, such as an illustrious 'family name' and familial tradition of service, family wealth, or educational acheivement )people who have college educated family members are more likely to go to and do well in college), that are going to be less likely found among potential minority candidates.

"I don't want to hear about centuries of this"

Putting fingers in your ears won't stop that centuries of discrimination occurred and the effects of hundreds of years of history are not over in a few decades. Continue to tell civil rights leaders you don't want to hear them. What do they know?

Early comment: "can't be a complete blank check." It isn't a complete blank check, down to opt outs, judicial review, limited jurisdictions, limited times before renewal, etc. etc.

"I'm usually more impressed by people making reasoned arguments."

Some of my ancestors got starved out of Ireland by absentee British landlords, too, and nothing's going to make that unhappen, but that's history for you. Once you get a generation out, you've got to treat it as what it is: History. I'm not going after the British for reparations, and if somebody talks to me about hundreds of years of discrimination, I'm going to sneer unless they're hundreds of years old.

What's the alternative, imagineer some alternate history where no injustices ever took place, and try to cram today into that mold? Creating injustices today, in an attempt to erase those of yesterday?

Yes, I suppose in some attenuated sense it matters whether your great, great, great grandfather was a slave. Or a tenant farmer. Or barely making a living trading furs. But what your father did maters more, and what you do matters most of all.

We do people no favor by extending them excuses for the failures which are 95% of their own making.

We had centuries of slavery, a Civil War, multiple amendments up to the 1960s, over a hundred years of second class citizenship in blatant ways after the Civil War and ongoing discrimination and racial discord.

How this is not supposed to be a powerful influence in various respects is unclear to most of us. The history, ongoing, is a bit different in this country than what occurred in the 19th Century in another country. Though OVER THERE, sneering at the importance of history on Anglo-Irish relations would get the same response given realities.

We are not asking for "reparations" here. People are not just hanging on to history. They are noting that history matters, not just slavery, and influences events. We can ignore this or science or whatever, but it still occurs.

Also ...

(1) Again, there is no "blank check."

(2) People are not "95%" the creators of their failures. The failures are a result of various factors, including realities that yes are influenced by history that is still with us, and blaming individuals for such things as if they have 95% free will here is wrong. Now, we can accept that is how life works, we just have to live with it, such as when Booker T. Washington suggested a certain path for blacks. That is, a libertarian mind-set that argues trying to address certain inequalities will be counterproductive. That's one thing.

To imagine that people are just all creators of their difficulties is quite another thing.

Brett, your ancestors got starved out many, many decades ago. But we still have blacks alive today who experienced Jim Crow, much less the many whose fathers did...That might make that 95% drop a bit...

Some of us born and raised in the Boston area learned about the plight of the Irish famine that led to many Irish coming to the Boston area in the 1850s. It was hunger that drove many Irish to Boston back then, with many dying before their boats landed and many died shortly thereafter. (At Concurring Opinions Brett in effect equated hunger as food addition, most likely facetiously, in another context.) The irish, mainly Celts, were not welcomed with open arms by the Anglo Saxon Yankees whose Boston forbears had been here for generations. Some Anglo Saxons did not consider the Irish as white, or civilized, below the class of the Yankees. Even outside the Boston area many Americans have heard of the "Irish Don't Apply" signs. Brett's:

"Once you get a generation out, you've got to treat it as what it is: History."

But it took more than a generation for the Irish in Boston to make their mark. Of course the Irish weren't in chains and were white and had the benefit of being educated through the Catholic Church schools, if public schools were not available. And the Irish didn't look that different from the Yankees after a while. Even with these "benefits" that were not available so readily to African-Americans, it took several generations and procreation and marriage to other whites for the Irish to start to gain political power. Yes, political power in Boston helped to raise the qualities of life for the Irish, even though the Yankees maintained political control at the state level and enacted laws that tried to make Irish Boston politics less of a power. By comparison African-Americans after the Civil War and the Reconstruction Amendments were not in a position in the former slave states - and even in the non-slave states - to emulate the Irish political power in Boston (as well as in New York).

By the way, Boston Irish have not forgotten the Irish famine and the role of Great Britain. Just come around here on St. Patrick's Day. I'm not Irish but I grew up in the shadows of Hibernian Hall and Intercolonial Hall on Dudley Street in Roxbury and to this day I can hear the melancholy Irish accordion with stories of those times back in Ireland. When I think of their travails back then, I am Irish.

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Off topic:

Yesterday I finished reading Michael Dorf's "The Undead Constitution," an in depth book review of Jack Balkin's "Living Originalism" and David Strauss' "The Living Constitution" available via SSRN at:

The review is 45 pages in length, published in 125 Harv. L. Rev. 2011 (2011-2012). Larry Solum gave this paper a "highly recommended" at his Legal Theory Blog. I had read a number of papers presented at symposia on these books and actually attended most of a symposium nearby my home. Dorf's paper outshines them all. Those interested in the battle between originalism and non-textualism should read this paper. Dorf writes extremely well and doesn't focus on tooting his own articles. Dorf gives credit to Paul Brest for his 1980 article that demonstrated the folly of original intent originalism that most originalists have abandoned (except in spirit). Dorf has a sense of humor that is quite subtle. Of course humor is in the ear of the listener. At page 2017 he includes this: "That vision may prove useful for blocking reactionary programs of the sort currently on offer from the Tea Party and other libertarian movements." There are many more hidden throughout Dorf's paper. While Dorf is an admitted progressive (as are Jack and David), he challenges both of them in his review.

Linda Greenhouse's Opinionator column at the NYTimes website today - 'A Big New Power" - on Shelby County suggests the potential negative impact on the Court's future if its decision goes the way of oral arguments. I see in Shelby County a potential Dred Scott of the 21st century if that is the outcome. Dred Scott was 7-2, as I recall, with several concurring opinions, whereas Shelby County is expected to be 5-4, either way, but may also provide several concurring opinions. While Justice Kennedy is considered as the swing vote, I see the possibility of Justice Thomas playing that role if he reflects upon how history may look back at his time on the Court. I doubt that Justice Scalia would provide the opinion for the Court's decision. Perhaps CJ Roberts would reserve this for himself. But surely Scalia would not hesitate to file a concurring opinion confirming his statements during oral arguments. Perhaps the Court may seek a way to finesse its decision and keep Section 5 intact, in effect kicking the can down the road. But there is the nagging thought that the conservative majority might slow down the voting impact of the changing demographics. But how might Thomas address this based upon his personal experiences before benefiting from steps taken following Brown v. Bd. of Educ. and the 1960s Civil Rights Acts that smoothed the way for his appointment to the Court?

Thanks for the reference to the Dorf article, he's often a very good read.

Stephen Colbert (Faux Cracker, S. Car) piles on in defense of Justice Scalia on his Report yesterday with a segment on the Voting Rights Act that includes an interview with Julian Bond. Stephen reminds Julian that he personally was never discriminated against in South Carolina and Julian agreed.

Daily Kos is featuring Mark Fiore's "All in the Scalia" using the theme song from Archie Bunker's "All In The Family" to present Justice Scalia's apparent theme on Shelby County.

Putting fingers in your ears won't stop that centuries of discrimination occurred and the effects of hundreds of years of history are not over in a few decades. Continue to tell civil rights leaders you don't want to hear them. What do they know? chapter 13 willingboro nj

Strom Thurmond back in 1957 on his perceived wonderful plight of negroes. It should be noted that Rep. Clyburn was too discrete to reference current Sen. Lindsey Graham's (Cracker, S. Car) complaint during the 2012 presidential campaign about the shortage of voting angry while men. Tom Toles' cartoon displays an angry white windows 7 professional product key


with Jim Crow continuing to the 1960s Civil Rights Acts, including VRA, and even after with the Nixonian Southern Strategy, remnants of which where on display in the 2008 and 2012 elections.
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