Friday, February 27, 2004
Scrappleface thinks he's making a cute point, but I think he makes the opposite point of what he intended. I mean, obviously a state can offer scholarships that cannot be used to fund a course of study in journalism. No one could really suggest that, if the state passed a law giving scholarships to be used in courses of study other than journalism, that this somehow infringed on freedom of the press. Hmm?
But that's exactly the claim made by Scalia in his Locke v. Davey dissent. Scalia claims that a state benefit sets a "benchmark" from which any failure to deliver a benefit constitutes a "penalty" or even "discrimination." You'd think he was an old welfare-rights liberal from the 1970s. Or - even better - isn't this the very logic used by those who demand government funding for abortions - that a right is not substantial unless you have the means to exercise it, and therefore not paying for an abortion is discriminating against those who can't afford one, and denying them their right to choose to terminate a pregnancy? Sure you want to climb aboard this wagon, Tony?
Scalia's argument is not conservative in any sensible meaning of the term. It is not humble and restrained. It depends on an equal-protection-based understanding of rights that should be anathema to conservatives. It aggregates to the judiciary power that belongs in the legislatures and to the national government power that belongs with the states. It is the best example since Bush v. Gore that purported conservatives on the Court can be so swayed by the interests of ideologically-friendly groups that they have lost sight of their constitutional principles. It is an utterly unpersuasive dissent.