Justice Scalia Doesn't Understand Why Black People Feel âEntitledâ to Rights

“Democracy is an American entitlement,” said NAACP President, Benjamin Jealous in response to Justice Antonin Scalia's  controversial rant last week during the oral arguments in the challenge to Section 5 of the Voting Rights Act of 1965 (VRA).  The conservative Justice made the claim that Congress’ unanimous reauthorization in 2006 was the result of “a phenomenon that is called perpetuation of racial entitlement.” 

“I don’t think that’s [the unanimous reauthorization by Congress in 2006] 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,” Justice Scalia said amid audible gasps from journalists viewing the proceedings outside of the courtroom.

As I wrote in my recent piece about the VRA, "...upholding Section 5, the Supreme Court will ensure that this growing electorate is protected in the places with the longest history of discrimination.  By striking it down, against precedent, the Court will expose these historically vulnerable communities and risk that the fundamental right to vote cannot be equally exercised.” 

The VRA protects the foundation of democracy.  The act is in place as a tool to guarantee people of color are able to vote in circumstances that are just as fair as any other American.  If the voter suppression during the 2012 election cycle is any indication, the VRA is still essential in protecting people of color, not only in the former Jim Crow south but elsewhere.

MSNBC’s Melissa Harris-Perry said it best when identifying exactly what Justice Scalia misses with his “entitlement” comments, “Here is what you miss, Justice Scalia. A great thing occurred in the 1860s when Congress had to grapple with how to include the formerly enslaved within the circle of citizenship. That effort led Congress to articulate due process, equal protection, and a federally protected right to vote. Those pillars of citizenship apply to all. It is the opposite of a special entitlement.”

Dr. Harris-Perry is identifying the key distinction between an entitlement that people of color are getting from some sort of special status and a fundamental right guaranteed by our nation’s founding documents.  People of color were legally second class from the outset, and over time Congress passed laws to remedy the discriminatory and persistent impact of past discrimination. 

Furthermore, states covered by Section 5 did not simply stop discriminating against people of color simply because times and the laws changed.  That is what the VRA is about.  Section 5 in particular is in place as another level of accountability because places like Shelby County and a state like Alabama are a lot of things, but altruistic in allowing Black people equal access to voting laws is not one of them.

Ensuring that everyone has equal access is not an entitlement of one race over another. "Justice Scalia should refrain from speculating on the thoughts and motivations of the Congress and defer to the judgment of the overwhelming bipartisan majority that voted for reauthorization in 2006,” says Jealous. 

The VRA is before the Court this week just as we marked the 48th anniversary of Bloody Sunday.  Congressman John Lewis, who was severely beaten fighting for the very rights that Justice Scalia is labeling a “racial entitlement,” was shocked by Justice Scalia’s comments and said on MSNBC last week, “It is an affront to all of what the Civil Rights Movement stood for, what people died for, what people bled for, and those of us who marched across that bridge 48 years ago, we didn’t march for some racial entitlement.”

While shocking, Justice Scalia’s comments are not surprising. Much of his jurisprudence is written from a position of White male privilege, denying any difference in status between people of a different race and gender. The VRA is here to protect Americans who weren’t born into the same level of privilege the conservative Justice clearly takes for granted.  Hopefully five of the Justices on the Supreme Court disagree with their colleague and rule to uphold Section 5, so that the next generation can fully participate in the political process this country holds dear.