Over at ThinkProgress, the race brigade is out in full force. Why? Because yesterday, during oral arguments apropos the constitutionality of Section 5 of the Civil Rights Act, Justice Scalia outlined to solicitor general Donald Verrilli the case against the court’s deferring to Congress:
The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. 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. 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.
Regardless of whether Scalia is correct or not, this is a thoroughly reasonable argument, and one that we should not allow our our sound-bite culture to distort. (Scalia’s legal description of Section 5 as a “racial entitlement” that was at one point wholly necessary is accurate, too.) His observation was a good one: As the need for the supposedly temporary Section 5 has diminished, legislative enthusiasm for it has increased. And so charged is America’s racial history that merely questioning the propriety of certain provisions of the Civil Rights Act — or the application of those provisions in a changed world — is enough to get one into hot water. As such, there is a case to be made that the court must do what Congress will not. Whether or not this justifies the court’s getting involved is a separate, legal question. But Scalia’s case is strong.
There is a certain strain of progressivism that cannot regard any question as worthy of examination on its merits. In this philosophy, the outcome is all that matters. To those who have been infected with this sordid little creed, process can go hang providing that power is exercised as they wish and that each and every one of their sentiments is indulged in perpetuity. Meanwhile, those who hang on to notions of law and reason are assumed to be concealing bad motives — or, worse, as being secretly evil. Better just to speak platitudes than deal with anything thorny, eh?
ThinkProgress typifies this form of progressivism: Scalia’s “suspicion of the Act,” the authors write, cannot possibly be the product of his legal opinion, but must instead be “rooted much more in racial resentment than in a general distrust of unanimous votes.” And so, without any sense of irony or self-awareness, because Scalia noted that opposition to possibly defunct racial laws leads one inexorably to being accused of racism, ThinkProgress . . . accused him of racism. Someone should discuss what happens to legislatures when they become mired in this sort of nonsense; perhaps a Supreme Court justice might take up the topic . . .