Scalia’s originamalism
by digby
Ian Millhiser takes a deeper look at Justice Scalia’s rather alarming comments in yesterday’s oral arguments:
When Scalia uses the term “racial entitlement” he appears to be referring to the kind of law that entrenches itself because lawmakers are too afraid to vote against it for fear of being accused of racially improper motives. As Scalia puts it, “[w]henever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” In other words, Scalia believes that the Voting Rights Act somehow “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” and thus it is his job as a judge to strike it down.
This is a disturbing idea for many reasons, but one of the biggest ones is that its logic could extend well beyond the Voting Rights Act. There is a common belief among conservatives that welfare programs by their very nature lead to the kind of so-called breakdown of democracy that Scalia finds objectionable in the Voting Rights Act case. Indeed, the most famous articulation of this view was Mitt Romney’s 47 percent remark: “those that are dependent on government and those that think government’s job is to redistribute — I’m not going to get them.” In essence, Romney warned that as the government creates welfare programs, this transforms welfare recipients into a constituency for those programs. And eventually that constituency becomes so large that it is impossible for a lawmaker to repeal those programs, or for people who oppose those programs to get elected.
To be sure, Scalia has never explicitly endorsed Romney’s view of welfare — although I’d be willing to make a $10,000 bet that he agrees with Romney. But it’s not hard to predict how a judge who agrees with both Romney’s view of welfare and Scalia’s view of when judges must destroy democracy in order to save it would react to the modern welfare state. With his racial entitlement comment, Scalia offered a constitutional theory that would allow movement conservatives to strike down the entire American safety net.
Just don’t call it judicial activism because that would be very wrong. And unconstitutional.
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