Thursday, October 29, 2009

Not new but nicely done. Balkin
First, although it's clear that Justice Scalia would not have upheld segregated schools in the states, it's not clear that he would be able to strike down segregated schools in the District of Columbia. In particular, we don't have a good sense of what Justice Scalia thinks of the originalist case for Bolling v. Sharpe, which held that the Due Process Clause of the Fifth Amendment, ratified in 1791, prohibits racial classifications by the federal government. Consider this: in 1791 black people were held in slavery. It's hard to argue that this clause, interpreted according to the expectations of the late eighteenth century generation that framed it, prevents the federal government from engaging in racial discrimination. Moreover, Justice Scalia has long been an opponent of reading the Due Process Clause to have substantive content. If so, why isn't Bolling v. Sharpe an impermissible form of substantive due process, as impermissible as, say, Roe v. Wade? If Justice Scalia believes that Bolling is correct, it can't be because of his originalist views. Rather, it is, as he would say, a case where courts just made new rights up.

And, of course, if Bolling falls, then so too must the Adarand decision, which held federal affirmative action programs to a standard of strict scrutiny. Indeed, Justice Scalia's view, stated in a concurrence to Adarand itself, is even stronger-- he believes that race conscious federal affirmative action is almost always unconstitutional; as he puts it, "government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction." But if so, what is the basis for that conclusion, given his views on original meaning originalism? It certainly is not consistent with the attitudes or actions of the framers in the Reconstruction Congress that enacted the Fourteenth Amendment. They passed various educational and welfare statutes designed for the benefit of blacks, including free blacks who had not been held in slavery.
I'm reading Erasmus and Luther. Luther as Salafist, searching for truth in dogma. Scalia is more the anti-reformist Churchman, inflexibly defending hypocrisy.

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