FU - FairAndUNbalanced.com

John Randolph, a Senator from Virginia in the early 1800s, was quite a character. He would get mad and insult people, sometimes entertainingly. Before he became a Senator he was a member of Congress where he once accused Henry Clay of "crucifying the Constitution and cheating at cards." That makes me imagine what a modern equivalent might be. O.J. Simpson is a murderer and cheats at golf? Ohio's Jon Husted conspires to deprive people of their voting rights and is also a Republican?

The story is that Clay got mad and challenged Randolph to a duel. That was a bit of a mistake. Besides insulting folks, Randolph had another hobby. He liked shooting people. And he was better at shooting than he was at insult.

So he and Clay faced each other. But before the dueling started, Randolph fumbled a bit and accidentally fired into the ground. That gave Clay a clear shot. But Clay allowed that it was a mistaken shot and both men lined up and fired. They both missed, but Clay's coat was a little worse for wear. A bullet had gone through it. They lined up to fire again. This time, Randolph raised his pistol and shot into the air. So Clay declined to shoot and they shook hands and made up.

It's hard to imagine such sportsmanlike conduct on a dueling range without contemplating how utterly dumb the entire ceremony was, even allowing for differences in custom. Were these guys entirely without any sense?

I got to thinking about John Randolph as I heard accounts of yesterday's arguments before the Supreme Court. At issue was Section 5 of the Voting Rights Act. That is the section that says that certain parts of the country have had a relatively recent history of depriving people of the right to vote. So any change in voting arrangements, tightening requirements, changing polling places, that sort of thing, have to be run past the Department of Justice. They have to be satisfied that changes won't be some disguised attempt to keep minorities, or anyone else, from casting a legitimate vote.

The voting rights act was not a reaction to some bit of ancient history. That history is, in fact, well within the memory of many of us. The most routine methods were simply silly. Prospective voters were made to demonstrate math skills by telling registrars how many jellybeans were in a large jar. Literacy tests were about obscure parts of the Constitution. How many witnesses are required to bring forth a charge of treason? That sort of thing. White folks were grandfathered in, allowed to bypass such obstacles because their parents or grandparents had a voting history, or because prominent citizens would sign papers on their behalf.

It wasn't all fun and games, seeing who could devise the goofiest tests. Tests were scheduled only during working days. Employers were notified that their employees were acting out by trying to register. Citizens Councils paid friendly visits to employers who did not crack down on such absenteeism. And, of course, violence was a constant.

"Strange fruit" was more than a song. It described the bodies that decorated trees. Other victims simply vanished in swamps or earthen dams, some discovered years later.

Under the Voting Rights Act, some practices calculated to impact black people or Latinos have been overturned. Restrictive photo requirements that force folks to pay multiple visits to distant offices were stopped. Voting days on weekends that working people have traditionally used to cast their ballots, were eliminated, then opened again. In some urban areas, polling times were restricted, while rural or suburban areas were to be kept open. This was also overturned in Ohio.

Some obstacles were kept in place. Time consuming practices that cause long lines in minority communities caused voters to wait in line for 5 hours or more. Hundreds of thousands of voters in Florida alone had to give up and return to families.

Those who are pushing to have voting rights legislation overturned make two arguments.

One is that times have changed. Things are far better than they once were. There is no need for such strict watchdog requirements. Let us treat minorities how we will. We can be trusted now.

The other is the argument of regional discrimination. We who are being guarded, watched for signs of voting discrimination, are not doing anything that at least some other communities are not doing to their minority voting populations. And those other places are operating their will without federal interference.

It appears the court will overturn Section 5. At least that's the way comments made during oral arguments make it appear. The leader, as is often the case, is Justice Antonin Scalia. Justice Scalia often takes positions that lesser minds might quickly abandon.

A few years back years ago he explained to an interviewer that torture by police is Constitutional. The Constitution prohibits Cruel and Unusual punishment. As long as a suspect is legally innocent, there is nothing to punish. Torture is not punishment unless there is a conviction for a crime. Only after a guilty verdict is announced, does torture become unconstitutional.

He argued to overturn a verdict against a mega-corporation for an informal policy of discrimination against women. Orders had been given that women were not to be considered for promotion. There was a written policy for show forbidding discrimination, but management was documented to be continually overriding it. Scalia cast his vote based on that written policy. His reasoning was a bit unusual. If the written policy is real, you can't sue the company for not having a policy it actually has. And if the policy is not real, then the company has no policy. You can't sue a company for a policy that does not exist. Just because a million individual decisions happen to fall the same way is no reason to suspect a pattern of discrimination:

"Here respondents wish to sue about literally millions of employment decisions at once."

He told a law school audience that discrimination against women and gays and minorities was completely constitutional. The plain language of the 14th Amendment might say otherwise, but applying it was what he called "a modern invention"

When innocent people were convicted, then exonerated in Louisiana, they sued. Evidence that would prove they were innocent had been hidden by prosecutors for years. One man was nearly executed. Scalia voted against them. His reasoning was that there was no pattern of hiding evidence of innocence because the evidence being hidden was different evidence in each case.

Yesterday, Justice Scalia brought to us another example of his intellectual brilliance. He spoke about Section 5, the section that prevents certain governments from keeping minorities from voting, if those governments have an unfortunate history. He called the provision a "perpetuation of racial entitlement."

Yup. That's what he said. His reasoning was that support for the Voting Rights Act was overwhelming. In fact, the last time it was passed, nobody in the Senate voted against it. The fact that everyone thought it was needed is strong evidence that it is not needed.

Kind of Catch 22. If it had enough opposition so it couldn't be passed, it would have meant it was needed. But most folks thought it was needed, so it isn't needed.

And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s 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.

What struck observers was the part of that argument that followed the since-everyone-thinks-it's-good-therefore-it's-bad logic. When the good Justice uttered one phrase, "perpetuation of racial entitlement," there was an audible, unified gasp in the room. That sort of noise is unheard of as argument are made.

So was that phrase as it is applied to the right to vote. The right that so many suffered for, that so many died for, is not a racial entitlement. It is an entitlement, period. And it ought to be protected.

Scalia's imaginative reasoning, and his startling conclusion that voting is a racial entitlement, are what reminded me of John Randolph, the Senator who loved to duel and loved to insult.

Randolph once wrote to Francis Scott Key about an opponent, Edward Livingston. He acknowledged the brilliance of Livingston's shining intellect, and compared it, poetically, to a sometime sight on fishing docks: the brilliant shine of mackerel in the moonlight. He called his target
"a man of splendid abilities."

He shines, Randolph said, "like rotten mackerel by moonlight",
"He shines and stinks."

Podcast: Scalia Logic: Voting Rights Act Had Too Much Support