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| September 15, 2005

Antonin Scalia is supposed to be the paradigm of a strict constructionist, but Cathy Young looks under the justice's robes in search of the hidden activist.

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|9.15.05 @ 9:29AM|

Pretty bold topic, and one needing more than a few cherry-picked examples to be convincing. I do suppose that Scalia has been proven to be less than perfect though, and here I thought every justice from the founding of the republic was 100% consistent throughout their term.

|9.15.05 @ 9:38AM|

Bush v. Gore is all you need to see that the SC justices are human and political. There is no such thing as an objective justice, true to their philosophy. We could just have computers spit out a result if it was so simple.

That's why this kabuki dance going on in the Senate now is such a joke.

There are also other big problems with originalism. Brown v. Board is completely unjustified through this lens yet no one would quarrel with its result.

|9.15.05 @ 9:45AM|

jf

I think the point is, Scalia spouts off this devotion to orginalism more than any other justice. Therefore, deserves more critisism for not upholding it consistently.

Dave W.|9.15.05 @ 9:53AM|

There are also other big problems with originalism. Brown v. Board is completely unjustified through this lens yet no one would quarrel with its result.

I do. I think if separate but equal had been enforced (and I do mean ENFORCED!), then the US would be a lot better off race-wise. I know if you gave me a choice for a school for my child and I could only choose: (1) intergrated school system; or (2) school system with per-pupil spending at a state-wide average -- I'd go for choice (2), especially if I lived in a school district with lots of poverty. Yup EQUAL. Not Plessy-style faux equality. Equal money. The kind of equality that really counts.

I can imagine such an equal per-pupil spending society, but I think Brown makes it difficult for the US to get there. Brown is not just Constitutionally wrong -- it was bad policy. Maybe good in the short run (don't know, wasn't borned), but deadly in the long run.

|9.15.05 @ 10:08AM|

Well, one of the basic beefs with Scalia is that he tends toward perfering an absolute majoritarianism.

bushwhacked,

Well, that's why the justices in Brown simply ignored the discussion, etc. that went into the 14th Amendment.

|9.15.05 @ 10:13AM|

Hakluyt, it's also interesting that around the time the 14th amendment was passed Congress passed the Freedmen Bureau Bill, essentially affirmative action for newly freed slaves. Yet so-called originalists strike down any affirmative action legislation today.

|9.15.05 @ 10:15AM|

Dave W.,

How would it have been enforced? I think you are ignoring the reality of the political power structure at the time of Brown.

Keep in mind as well that having two duplicate school systems is more expensive than having one school system.

|9.15.05 @ 10:16AM|

bushwhacked,

Well, the idea that framers of the Civil War Amendments, etc. were "blind" to race is flat out ludicrous.

|9.15.05 @ 10:18AM|

Then again, I am blind to race because I think (at least biologically) that its a relatively useless notion.

|9.15.05 @ 10:24AM|

Oh, bullshit, Hak. Unless you're prepared to say that your reaction to hearing the word "n----r" from a white person's lips is exactly the same as your reaction to hearing it from a black person's lips, then no, you are not color-blind.

Nor should you be. Why the hell anyone would want to blind themselves to an entire field of important issues is beyond me.

Hey, let's just pretend the people stuck in the Convention Center were a perfect cross section of American society! Then we can congratulate ourselves for our blindness to race!

|9.15.05 @ 10:32AM|

Why can you type out "bullshit" but not "nigger"?

|9.15.05 @ 10:40AM|

Bullshit isn't as hurtful.

|9.15.05 @ 10:47AM|

joe,

Heh. You missed the entire point of my statement.

Also, one can say or write the term nigger without being hurtful.

|9.15.05 @ 10:49AM|

I rather think you, and others who use the term "colorblind," miss the point of your own statements.

|9.15.05 @ 10:51AM|

joe,

You see, I explain differences between aggregate groups of humans based on socio-cultural and environmental differences. Race has primarily been a biological concept, and thus its not particularly useful since in an aggregate sense the biological differences between the so-called "races" are negligible. Thus I do not find it to be a very useful concept, and thus I am blind to it.

|9.15.05 @ 10:54AM|

joe,

Indeed, to be more blunt, its not even been a very good biological concept since what differentiates the various so-called races changes via non-empirical fads (check out Gould's The Mismeasure of Man and similar works fir you take issue with that statement).

|9.15.05 @ 10:55AM|

joe,

Your knee-jerk responses are amusing and informative. :)

fyodor|9.15.05 @ 10:56AM|

I'm no expert on the Civil War Amendments, but bushwacked's post makes me want to point out that differential treatment for "newly freed slaves" and the same for "African-Americans" are not one and the same thing, especially when the latter group means blacks 140 years after slavery ended.

|9.15.05 @ 10:58AM|

joe,

Ask yourself a question - what difference is there between "white" people stuck at the Convention Center and "black" people stuck there?

|9.15.05 @ 11:03AM|

joe,

Are you going to go apoplectic again if I tell you that I (along with a heck of a lot of anthropologists, evolutionary biologists, etc.) think that the concept of race makes no taxonomic sense? :)

|9.15.05 @ 11:04AM|

Hakluyt, yes, race as a biological phenomenon has been pretty well knocked down. But it remains with us a social and cultural phenomenon, one that is heavily intertwined with economic issues. Those don't just go away because the enlightened choose to ignore them.

As for the Convention Center questions - the biggest difference is numbers. In a nation in which black people make up a little more than a tenth of the overall population, they made up perhaps nine tenths of the population allowed to starve and thirst for nearly a week because of an inoperative relief system.

|9.15.05 @ 11:05AM|

And I don't consider it noble to be "blind" to those numbers. I consider it the height of intellectual cowardice.

fyodor|9.15.05 @ 11:05AM|

And in case my point wasn't clear, there's a big difference between treating people differently based on something that has happened (usually what they have done, although in this case what has been done to them) versus treating people differently based solely on who or what they are.

Example: pay reperations to people who have been wrongly held at Gitmo would obviously be different from paying reperations to all Muslims, or all Afghani-Americans, or whatever. The difference betweeen "newly freed slaves" versus all black Americans is not as clearcut, and was less so immediately after the Civil War, yet the principle is the same.

Larry Horse|9.15.05 @ 11:05AM|

Not to be a dick, but Ms. Young's first paragraph contains the phrase:

"Meanwhile, as the country debates whether John Roberts deserves to replace Sandra O�Connor on the Supreme Court"

She may have written this before the Labor Day weekend, but that should probably be edited to reflect his being now appointed to replace Rehnquist instead of O'Connor before it hits the newsstands.

|9.15.05 @ 11:07AM|

True enough, fyodor. However, while the actual harm visited by slavery has not been carried out on any living person, the harm of the continuing second class status is still being visited on African Americans in this country.

|9.15.05 @ 11:11AM|

Fyodor, you make the point of why originalism is inherently flawed. There is clearly a difference between now and 140 years ago but an originalist is hamstrung to 140 years ago and the legislative intent of the 14th amendment is clear - affirmative action is ok.

|9.15.05 @ 11:12AM|

joe,

And I don't consider it noble to be "blind" to those numbers. I consider it the height of intellectual cowardice.

You're all puffed up with faux moral outrage I see. BTW, when did I write that I was blind to the fate of those in the Convention Center? Oh I didn't. Your fabrications are at best amusing. Your problem is that I simply don't categorize them the way you want me too.

|9.15.05 @ 11:12AM|

I don't get all histrionic about the word word nigger. When I hear the word nigger, I think of two things. First, the idiotic concept that if this particular epithet is verbalised by a person of particular color, it is acceptable. Second, I think of this line from Blazing Saddles: "Sir, I sure hate to see you like that. What if me and the boys was to shoot that nigger dead? Would that pep you up some?"
Hey, I just used the word nigger 4 times in this response?

fyodor|9.15.05 @ 11:17AM|

joe,

Yeah, I guess that's the justification. And yet that's obviously quite the abstraction to be basing differential treatment on. I'm sure there's plenty of white people in this country who because of their upbringing and related factors feel just as justified in feeling they are "second class citizens." How about third class citizens? One-and-a-half class citizens? A veritable Pandora's Box to figure out who truly deserves to be treated differently if such abstractions are allowed to be considered what makes someone different under the law.

|9.15.05 @ 11:18AM|

joe,

You see, race is a very fluid social construct, and I don't find it a very useful one because it tends to ignore, in this instance, the 10% (if we take your off the cuff statistics as correct for the sake of argument) of the population who weren't "black." In other words, I don't find it to be a very good proxy (and that's it ultimately is) for describing social ills, etc.

|9.15.05 @ 11:19AM|

"BTW, when did I write that I was blind to the fate of those in the Convention Center?"

You didn't - not did I accuse you of doing so.

And it doesn't really matter whether you "choose to categorize" the populace of the Convention Center as overwhelmingly black. They were overwhelmingly black, regardless of your willingness to admit that fact.

Troy, parody and satire are often given special dispensations.

fyodor|9.15.05 @ 11:23AM|

bushwacked,

I'm not a big fan of originalism. But my point is that affirmative action for "newly freed slaves" is different from affirmative action based on racial categorization. To say the former is okay is not to say the latter is okay.

|9.15.05 @ 11:23AM|

"...the harm of the continuing second class status is still being visited on African Americans in this country."

Oh, really? On each and every of them? A majority? A certain percentage? And what, pray tell, will reparations do to enhance the status of African Americans?

|9.15.05 @ 11:23AM|

fyodor,

Oh goodness, I come from several generations of "lower class" white and black families (no one in my faimily talks about the latter). Trying to differentiate which line is more disadvantaged is flat out silly.

|9.15.05 @ 11:26AM|

joe,

I'd say that they were overwhelmingly (entirely?) poor. Their poverty matters more than their skin color I am afraid. Why are you insensitive to their poverty? :)

|9.15.05 @ 11:28AM|

the harm of the continuing second class status is still being visited on African Americans in this country

Explain second class status in a meaningful way. And by whom is this status being visited?

|9.15.05 @ 11:29AM|

oed,

In the 1960s approximately 2/3rds of the "black"* population lived in poverty; approximately 1/3rd now live in poverty.

*Keep in mind that figuring out who is and isn't black is problematic in and of itself. I've got black relatives, yet I'm lily-white; does that make me black? It did in some states in the 1960s. This is one of the reasons why the concept of race isn't very useful.

fyodor|9.15.05 @ 11:29AM|

Hakluyt,

To make joe's point better than I think he's doing himself, if one thinks that the preponderance of people identified as black at the Superdome was the reason why aid was as slow as it was in coming, then it certainly becomes a worthy issue when discussing or examining the nature of the response.

I'm certainly not aware of any evidence that that was the reason, but of course lots of people are quite certain that it was.

|9.15.05 @ 11:33AM|

"Why are you insensitive to their poverty? :)"

I've never argued that "socio-economic-blindness" is a virtuous mode of thinking, Hakluyt.

oed, "reparations" is a broad term. Cutting checks will probably do little to address the structural problems that matter.

|9.15.05 @ 11:37AM|

The race of those at the Superdome was a symptom, not a cause. New Orleans is 70% black and there is a lot of poverty there. This poverty is not caused by racism.

|9.15.05 @ 11:38AM|

fyodor,

I think its largely because they are poor, and poor people tend to be less of a stakeholder in our society. I guess its morally wrong for me to look at what happened in New Orleans (a city I've been too more times than I can remember - enough so that I most of the places they show in the city on TV are familiar to me) and think that poverty is the most important factor.

|9.15.05 @ 11:53AM|

joe,

Since your primary mode of analysis is race, you are indeed blind.

fyodor,

Given that most of the political power structure in New Orleans is "black," and the poor response of the city is part of this FUBAR, its hard for me to take the "racism caused this" trope seriously. Well off "black" people in the Big Easy got out of New Orleans just as easily as well off "white" people did after all.

fyodor|9.15.05 @ 12:47PM|

Hakluyt,

You make some good points. FWIW, I'm merely making joe's points for him, and I'm certainly not calling you immoral. That said, I hope you agree that it's an understatement to say that race has clearly been a cause of discriminatory behavior independent of economic class in our nation's history (and elsewhere). Given agreement on that, the question that remains is whether such history helps explain current events. It's my personal experience that most Americans, including Republicans, would bend over backwards to show that they are NOT racist. But whether that observation helps one to understand the motivations of W. Bush and others in the upper echelons of power I leave to those more clairvoyant than I. Joe? :-)

Jesse Walker|9.15.05 @ 12:50PM|

Larry: The article originally appeared in the print edition of the magazine, and was published there before Rehnquist died. That's why the opening paragraph was unchanged.

|9.15.05 @ 12:55PM|

fyodor,

Did you know most of increase in poverty found in the U.S. following the 1990s was due to "whites" falling into poverty? Of course "whites" make up ~70% of the population, but even from a per capita standpoint, more "whites" have fallen into poverty since 2000 than any other group. Given the lense via which joe wants us to view society, how do you explain that?

That said, I hope you agree that it's an understatement to say that race has clearly been a cause of discriminatory behavior independent of economic class in our nation's history (and elsewhere).

Sure, the social construct of race has been problematic, but it hardly explains by itself the history of poverty, political oppression, etc. in the U.S. (or anywhere else).

|9.15.05 @ 1:06PM|

fyodor,

Ever read wayne Flynt's Poor But Proud: Alabama's Poor Whites?

|9.15.05 @ 1:07PM|

Lots of percentages have been thrown around here, but I bet dollars to donuts that no matter what their race or skin color 100% of the folks in trouble in the Big Easy were one or two standard deviations below the average IQ

fyodor|9.15.05 @ 1:11PM|

Hakluyt,

If joe is saying that race is all that matters when discussing poverty or relief efforts, then I would most certainly disagree with him. No shocker there. But when you say: "[race] hardly explains by itself the history of poverty, political oppression, etc" you seem to be acknowledging that it can very well be a relevant issue, if just not the only one. If it is a relevant issue, then joe wins the argument and race is indeed a meaningful issue to discuss in such contexts compared to ignoring it entirely. Now, perhaps one could still complain that joe puts too much emphasis on it, but that appears to be a different issue than the one raised.

|9.15.05 @ 1:41PM|

fyodor,

Maybe you ought to read my comments above again, because you seem to making some assumptions about what I wrote that have nothing to do with what I wrote. Indeed, because joe so stupidly responded to my original statement, let me repeat it again:

Then again, I am blind to race because I think (at least biologically) that its a relatively useless notion.

Notice the proper noun "I" inserted in that sentence. Yes, "I" think that race isn't a very useful construct (especially from a biological perspective).

|9.15.05 @ 1:46PM|

fyodor,

You see, when joe sees the N.O. convention center, he sees "black" people, even though not everyone there was "black." I see poor people, and I consider poverty to be important issue at hand. However, for some reason my perspective makes me due for some limousine liberal moral opprobium. Maybe my perspective is skewed by having actually grown up with poor people - white, asian and black.

|9.15.05 @ 1:58PM|

I think that to a certain extent everyone is a racist. The only thing that differs is how you define 'your tribe', and how you define 'not your tribe'.

Skin color is the easy way, but is not really an effective measure to anyone.

|9.15.05 @ 2:52PM|

fyodor,

"That said, I hope you agree that it's an understatement to say that race has clearly been a cause of discriminatory behavior independent of economic class in our nation's history (and elsewhere)." More importantly in the present day, it has been a cause of misery and lack of opportunity in conjunction with class.

I just don't see how "oh, that's because black people are so much more likely to be poor" removes racism from the discussion - unless you want to define racism only as maniacal white guys burning crosses and diverting cargo shipments out of racial animus.

"Given the lense via which joe wants us to view society, how do you explain that?" I have never said class should be removed from the discussion; I plinked you for saying race should be removed from the discussion. C'est un homme de straw.

|9.15.05 @ 4:29PM|

"C'est un homme de straw."

Homme de paille ?

|9.15.05 @ 5:50PM|

Hmmm, back to the article at hand.

Scalia has painted himself to be a strict constructionalist, whatever that means, moreso than I've noticed than any other justices, therefore critisizing this claim with counterlogic I feel is both fair and warranted.

That said, there is no way to be completely constructionalist in anyone's eyes because original intent is in the eye of the beholder.

Personally I think Scalia is a bit of showman, exhibiting a bit more passion in his decisions as if moral outrage is constantly overcoming him, which definitely sheds a negative light on him

|9.15.05 @ 6:20PM|

This is a good primer on Scalia and what motivates his ideology.
http://www.newamerica.net/index.cfm?pg=article&DocID=2291

|9.15.05 @ 7:21PM|

joe,

...I plinked you for saying race should be removed from the discussion.

When did I write that again? Hmm, I didn't.

Because you are apparently being rather dense today, let me repeat what I wrote:

Then again, I am blind to race because I think (at least biologically) that its a relatively useless notion.

Maybe when you actually sit down and ponder what that statement actually says you'll get off your highhorse.

Also, limousine liberal, leave the French to those of who actually understand how to use it.

|9.15.05 @ 7:26PM|

fyodor,

See, joe is your typical limousine liberal; everything is about "race" to him.

|9.15.05 @ 10:23PM|

�tendency of democracy to obscure the divine authority behind government,�

This is among the scariest lines I've ever read. What does it mean? Does Scalia believe that our government is not by the concent of the governed, but by some divinity?

"We the people..." should be amended to read "We the divine...", or "We the people divining the intent of God,..."

There is no reason to believe Scalia is consciously hypocritical on any issue.

That's a nice way of saying, "you're a hypocrit, but I don't want to insult you because maybe haven't thought to much about it." Say it. He's a hypocrit. I know, you know, and the American people know it.

|9.15.05 @ 10:58PM|

Race is important. But we shouldn't be blind to the contributions of Dr. Quest, Jonny, Hadjii, or even Bandit.

|9.16.05 @ 8:16AM|

"Unless you're prepared to say that your reaction to hearing the word "n----r" from a white person's lips is exactly the same as your reaction to hearing it from a black person's lips, then no, you are not color-blind."-joe

When I hear a white person use that word I figure he's a low class moron who's bigoted agaainst black people, when a black person uses it I figure he's a low class moron who likely has a low opinion of his own race. You're right, the difference is huge!

"Nor should you be. Why the hell anyone would want to blind themselves to an entire field of important issues is beyond me."

I've always understood "colorblind" to mean that one should not judge people or treat them differently on the mere basis of their skin color. Joe, are you telling us this is an incorrect moral stance?

"Hey, let's just pretend the people stuck in the Convention Center were a perfect cross section of American society! Then we can congratulate ourselves for our blindness to race!"

No, but it may a be a good cross-section of the flooded out New Orleans neighborhoods that were close to the convention center. A similiar disaster happening in any area of the country and any relation the occupants of a shelter are going to be to a "perfect cross section of American society" will be purely coincidental. Such perfect cross-sections exist only in theory, not in real discrete neighborhoods. For you to suggest that the high percentage of blacks in the convention center was primarily or largely attributable to racism on such flimsy evidence tells us much more about the myopic lenses you view the world through joe, than why that happened that way.

|9.16.05 @ 1:01PM|

"I've always understood "colorblind" to mean that one should not judge people or treat them differently on the mere basis of their skin color. Joe, are you telling us this is an incorrect moral stance?"

No, I'm telling you that defining how one treats people of different races as the only significant factor in questions of race and society is quite blind. Structural inequality plays a huge role in people's experiences, and to make decisions about issues while ignoring those factors is an incorrect stance.

"No, but it may a be a good cross-section of the flooded out New Orleans neighborhoods that were close to the convention center." Yes, it is. That's rather the point - for a whole host of reasons, things are set up such that the people who end up dying of thirst because they were abandoned after a hurricaine will almost certainly be majority-black.

The myopic lens that matters here is the one employed by those who think that "well, the really poor neighborhoods that got flooded out were mostly black" eliminates the role racism plays.

Hak, you wanna keep playing that game, I'll just ignore you. I've said class is important a number of times. It is you, not I, who is trying to take a field of iquiry off the table.

|9.16.05 @ 9:01PM|

The myopia I spoke of is looking at superficial facts, such as the racial makeup of the people in a particular shelter who were overlooked in the relief efforts and jumping to conclusions that the reason for it was malevolent rather than the simpler explanation of inept neglect and incompetence. It is an excercise in intellectual laziness that allows persons of your ilk to self-righteously preen on your high horses while you foster distrust and animosity between groups of Americans by encouraging a vision of Manichean conflict between them.

Joe, the majority population of New Orleans is black, the majority of the land area of New Orleans will flood when the levees fail. How are either of those givens attributable to racism? How in the world would you propose to change them?

Does racism exist? Yes. Is it as big a factor in our society as some would have us believe? No. Should the fact that racism exists cause us (and particularly the government) to judge other people based on their racial group and make decisions based on those prejudicial assumptions? No merely no, hell no. To do so is unjust and bigoted in and of itelf.

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