In this video, at 6:32, Justice Scalia was talking about the separation of powers.

In fact, the Bill of Rights was an afterthought, and the "initial" Constitution did not include a Bill of Rights.

That's because the framers thought the main protection for minorities would be the separation of powers.

In fact Justisce Scalia says:

Unless Americans can appreciate that, and learn ... learn to love the separation of powers, which means learning to love the gridlock, which the framers believed would be the main protection of minorities, the main protection: if a bill is about to pass that really comes down hard on some minority, they think it's terribly unfair, it doesn't take much to throw a monkey wrench into this .... into this complex system

What, in practical terms, would be the "monkey wrench" that is thrown in in order to stop a bill that really comes down on some minority?

Let's suppose that the majority of the people is Caucasian. For example, 80% of the people are Caucasian and 20% are Asians.

Let's further suppose, for example, that a bill is about to pass which says that the Asians pay all the taxes while the Caucasian pay no taxes.

Because 80% of the people are Caucasian, 80% of Congress is presumably elected by Caucasian people and reflect the will of Caucasian people.

The President is as well elected mostly by Caucasian people (at least assuming they are equally spread across the States).

How would the separation of powers, the gridlock, work out to stop this bill from passing?

  • I saw the downvote. Would ask for a real historical example of a bill that came down on minorities and was stopped by the gridlock improve the question? Dec 29 '21 at 22:47
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    This is not a question about established law. It's about a system of government. And "minority", in the context of the quote, clearly refers to the minority party rather than an ethnic/racial/demographic minority.
    – grovkin
    Dec 30 '21 at 13:19
  • @grovkin well it's not a question like "democracy" vs "monarchy". I take the established constitution as given, and I propose an example and I'm looking to know how the example would work out under established law, no? Jan 3 at 16:22

In this context, Justice Scalia isn't talking about racial minorities. Instead, he is referencing the political theory of the Federalist Papers, which was concerned about "factions" some of which were minority factions, and some of which were majority factions, which the U.S. Constitution was devised to protect in different ways.

White Americans aren't now, and never have been in U.S. political history, a united front with a consensus agenda.

Legislative and policy making gridlock protects the status quo protections that minority factions (generally ideological and political rather than racial in this line of thinking) enjoy, against the "tyranny of the majority."

The main minority that had been protected, in practice, by these practices have been rural whites, especially in the South, trying to protect their prerogatives in the status quo, against a political coalition of non-whites and Northern liberals. The classic example, for example, is the filibuster, which has largely been used by this faction of conservative whites to defeat civil rights legislation, until the last decade or two, when the filibuster started to be used frequently for purposes other than defeating civil rights legislation as well.

  • Pardon me, but the idea that the poorest states in the country have some sort of privilege, protected by a parliamentary procedure, requires an explanation of its own. But leaving that aside, the Civil Rights Act was passed in 1964. Which was almost 60 years ago (rather than a decade or two ago).
    – grovkin
    Jan 1 at 15:40
  • @grovkin The decade or two time frame reflects the period when the filibuster started to be used on a regular basis for legislation other than civil rights legislation.
    – ohwilleke
    Jan 3 at 15:14
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    maybe I see it. Given there is a new election, and a new coalition is formed, the former majority becomes a minority, and the former minority becomes the new majority. Then protecting the status quo means protecting the minority (which was the majority in the previous term ... so it approved laws that favored itself) Jan 3 at 16:26
  • @robertspierre Just so. Also, the ultimate status quo was the state of federal law as of the enactment of the U.S. Constitution in 1789, which was that there was no such law. The U.S. Constitutional process effectively requires and always has required something in excess of a bare majority of popular vote support to enact legislation and so, it has always protected large minorities (those without popular vote support but sufficiently large to prevent passage of legislation).
    – ohwilleke
    Jan 3 at 16:32
  • "Mr. Smith Goes to Washington" has nothing to do with the civil rights. And its use of filibuster, as a plot device, effectively demonstrates Scalia's point, as it applies to filibuster in particular. It was made in 1939. Again, the use of filibuster, to oppose civil rights legislature, is known to be a one-time occurrence. If you want to make the case that there was an era when it was systemic, that would be a historically-novel argument.
    – grovkin
    Jan 3 at 17:43

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