Determining Deserving Minorities (op-ed)

Recently Supreme Court Justice Antonin Scalia addressed law students at Georgetown University. During the question and answer period Scalia was asked about the court’s responsibility to protect minorities that couldn’t win rights through the democratic process.

Scalia responded, “You either believe in democracy or you don’t … What minorities deserve protection?” He stated the first amendment protects religious and political minorities, but beyond that, what empowers the Supreme Court to expand that list? He continued is it “up to me to decide deserving minorities? What about child abusers? Should I on the Supreme Court say this is a deserving minority … No, if you believe in democracy you should put it to the people.”

Scalia’s notion is the founders intended to protect only two minorities, the religious and the political. These were the only two that existed to the founders, in this context Scalia’s use of the word minority means less in number, but the founders didn’t used the general term, there terminology in the federalist papers was faction. But these factions were passions, interests, causes among the founders not stigmas.


Now the founders, operating as a faction, disenfranchised and stigmatized those they deemed undeserving. This resulted in second class citizenship and/or minority groups, in this context minority meant less than or insignificant (white males without property and white women) and it also meant those subordinate to the dominate group (free blacks, slaves, and natives).


So how did these undeserving groups secure rights? Was it through a simple belief in democracy as Scalia suggest?


Scalia makes belief a prerequisite for democracy, but democracy’s existence doesn’t depend on individual belief, so Scalia’s belief isn’t in democracy his belief is in the people. He believes the legislative body will make the right decision or come to the right conclusion over time.


But Scalia said you either believe in democracy or you don’t. It’s a choice, one the founders didn’t make. They didn’t approve of democracy. They called it mob rule. They favored a constitutional republic that emphasized individual liberty and placed limits on what a democratically elected majority could accomplish through legislative bodies.


But Scalia knows that, he’s aware that the whites benefited from what today is called white privilege, and that privilege lessened the stigma of class and gender making their rights easier to secure through the legislative body.


Scalia also knows that the group stigmatized by race confronted what the founders feared the most about democracy -- the tyranny of the majority. This racial group had to secure rights restricted to them by legislative bodies through the court. The 1954 desegregation decision wasn’t monumental just because it ended segregation it was monumental because the court decided the human consequences of the law were too severe to wait for the democratic process to correct over time. (The founders figured slavery would be corrected over time their miscalculation established a precedent that couldn’t be abolished without war.)


But Scalia knows that too, his comments were made in defense of his dissent to gay marriage. He was criticized for comparing the actions of consenting adults to criminal activity against minors. To critics its clear Scalia doesn’t consider gays a deserving minority, even though they are less in number and are stigmatized.


Maybe Scalia was demonstrating, through rhetorical questions, the complexity of making a constitutional stance which will be required of the law students. But did he intend to suggest to impressionable freshman that a belief in democracy alone entitles the believer to determine deserving minorities? And if Scalia’s rhetoric is followed and that determination is made will the believer be a participant in the democratic process or will the believer be a patsy empowering the tyranny of the majority?

First Published in the New Pittsburgh Courier 12/2/15