Justice Antonin Scalia mentioned it in connection with the Voting Rights Act, which is being challenged by one of the states subjected to review of its legislating because of its history of refusing to respect some people's civil rights and obligations. Indeed, Scalia said

"I think [the repeated passage of the Voting Rights Act] is attributable, very likely attributable, to a phenomena 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."
as was reported by one Chad Flanders, who then went to the trouble of researching where it had "been written about," only to discover that it was Scalia, himself, who invented the "problem" in anessay he had published in 1979. Clever that, referencing oneself without letting on that the notion has been largely ignored. And no wonder. The premise of
"In order to get beyond racism, we must first take account of race."
is all wrong.

First of all, there is no reason to get beyond racism. Racism needs to be rejected, to be gotten rid of as unworthy of rational human beings, if only because race is a figment of the imagination, a categorization based on superficial characteristics which have no functional significance. Unless one is looking for some criterion, any criterion on the basis of which human communities can be artificially ranked so the hierarchists have an excuse to dominate.

In his second sentence, he expresses his doubts:

I have grave doubts about the wisdom of where we are going in affirmative action, and in equal protection generally.
And, again, the problem is his own flawed perspective. He seems incapable of recognizing that, just as the first Amendments to the Constitution are addressed to the agents of government in prohbiting certain unjust behaviors, affirmative action is required of decision-makers in order for them to make equitable decisions in employment and educational services delivery. It's not a matter of "protection" for supposedly vulnerable citizens, but of authorities doing the right thing. And that is what the proponents of hierarchy do not want to hear. Authority, in their view, is independent and being directed to provide special favors is insulting. Never mind that no special favors are being demanded (though some people who have previously been disadvantaged might like them).

Special favors are the crux. The proponents of hierarchical authority rely on granting special favors to get their way. Privilege is one of their constants. They just don't want to be told whom to privilege and whom not. That entitlements are rights derived from human nature and the Constitution simply doesn't comport with a mind that's fixated on privilege. They probably don't even realize that "entitlement" is a dysphemism they've latched on to to preserve themselves from the equality that threatens their commitment to status. That rights = equality and equality is inimical to hierarchy are truths they are not prepared to confront, much less admit. So, they equate entitlement with privilege, which it isn't.

Moreover, as recent history has shown, the issue of civil rights is in no way restricted by race. Citizens asserting their right to govern challenge the traditional hierarchy and that's Scalia's problem. Pretending it's a matter of race won't make it go away.

It may be unfair to judge an essay on the basis of two sentences, but the more I have read, it doesn't get any better. Our Presidents really should make an effort not to appoint mean-spirited people to the bench.

Your Email has been sent.