Strengthening Constitutional Self-Government

No Left Turns

Morel on Brown

Lucas Morel reflects on the Brown v. Board of Education decision on its 50th anniversary. Here’s a sample:

"By officially desegregating public schools in America, a unanimous high court prompted the most productive decade of the modern civil rights movement, culminating in the 1964 Civil Rights Act and 1965 Voting Rights Act. However, the legacy of Brown remains mixed as its praiseworthy conclusion stands at odds with its flawed reasoning."

Read the whole thing and you will get a better understanding of why so many of the Court’s decisions since Brown regarding race have been so convoluted.

Discussions - 2 Comments

Lucas, in his excellent brief article, presented the most significant problems with the Brown decision. I will add a few pieces of evidence in further support of his criticisms.

The Court attempted to use the equal protection clause of the 14th Amendment, but the Court in its decision makes the incredible admission that, "Reargument as largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868 . . . . This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive . . . . What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty." Yet, the Court is basing its entire opinion on that Amendment anyway.

As Lucas points out, the Court even admitted that the schools for blacks in the South were equal to those for whites, thereby not seeming to violate the equal protection clause. "Here . . . there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ’tangible’ factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education." Thus, the Court (mis)used Clark’s (in)famous sociological/psychological experiments to prove "feelings of inferiority."

The greatest problem of this case is the threat posed by judicial supremacy buttressed by sociological evidence rather than the law. The Court should have rested its arguments with state legislatures violating fundamental law or left it to the democratically-elected state and national legislatures to change the law. This would have preserved our system of self-government. Equality for blacks would have taken longer (possibly) to achieve, but it would have allowed the civil rights movement to change the hearts and minds of lawmakers and segregationists by a willingness to break the law "openly, lovingly," and non-violently according to MLK’s appeal to natural law and just/unjust laws. The Court instead simply issued a judicial fiat because it wanted to achieve an admirable goal but did not have the constitutional means to do so.

Contrast the Court’s action in Brown with Lincoln’s Emancipation Proclamation. Lincoln fought consistently for the great principle of equality embodied in the Declaration of Independence to free the slaves but also maintained a high regard for American constitutionalism. While his pro-slavery opponents labeled him a dictator and WL Garrison called the Constitution a "covenant with death" and was willing to tear the Union apart to achieve his moral principles, Lincoln held steadfast to his principles, both moral and constitutional.

Twentieth-century jurisprudence since the Lochner v. NY decision as mostly stood on the foundation of judicial supremacy with a blatant disregard for the text of the Constitution. Many justices have bought into the "living Constitution" interpretation, which allows them to do whatever they want in the name of a changing, rather than eternal, Constitution. The problem is that when administrations and judicial appointments change the character of the Court, the two-edged sword may end up slaying its wielders.

The 14th Amendment has been equally stretched and pulled like so much salt water taffy until it reaches the correct consistency for each court which chooses to use it to determine the issue of "equality". It has been used beyond its original intent and recognition since at least the Warren Court. It set a dangerous precedent for all kinds of issues concerning "equality" and "equal access". While well-intentioned, social justice engineering does not work, either by the courts or by legislatures. Just because gays can "marry" (making a mockery of the institution of marriage - it is not a RIGHT, but a rite) doesn’t mean I will accept it. And I won’t accept it. We have, for several decades and thanks to social justice engineering by the courts, blithely accepted changes under the guise of "civil rights". I doubt MLK would agree or condone the use of "civil rights" being applied to gay marriage. I consider it a mockery of true civil rights issues that have been usurped by the gay rights movement. And far from being integrated, gays want separate schools so gay students won’t be harrassed and my tax dollars pay for it. Good grief - what’s next?

If the Warren Court had any idea, any inkling, of the future would hold, they would have found another way. This singular ruling open the flood gates in ways that they could not have imagined. I think I’m going to start my own civil rights movement - a return to common sense. Let’s see them rule against that!

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