In today’s Washington Post, Colbert I. King, who I normally pay little attention to for reasons that will become obvious, uses the death of Rosa Parks, some would say cynically so, to attack advocates of originalist interpretations of the Constitution and judicial restraint. As is usual for Mr. King, the logic is somewhat lacking.
The celebration of Rosa Parks’s extraordinary contribution to America presents an excellent opportunity for me to summon all the strength at my command so that I may shout at the top of my lungs: “Thank God Almighty for liberal judicial activism.” I suppose this makes me a heretic in a town where radical right dogma reigns supreme, especially after the trashing of White House counsel and now-withdrawn Supreme Court nominee Harriet Miers. But I’ll still pay tribute to activist judges. After all, it was a default by elected leaders that led an “activist” Supreme Court to decide in 1956 that it was unconstitutional to require that Rosa Parks and other black passengers in Montgomery, Ala., sit at the back of buses solely because of their race.
King gets it wrong from the start. The civil rights decisions of the 1950s, which overturned the Jim Crow laws that went into place shortly after the Civil War, were not an example of judicial activism at work. The 14th Amendment by its own plain language forbids laws that treat people differently on the basis of race, and that is exactly what the law in Montgomery did. The problem is that the 14th Amendment was never allowed to have its full force and effect. In Plessy v. Ferguson and other cases, the Supreme Court endorsed the plainly unconstitutional idea of “separate but equal”, and the Equal Protection Clause pretty much became a joke for the first 100 years of its existence. The decisions that overturned the “separate but equal doctrine” were faithful to the original intent of the 14th Amendment, even if the reasoning they used was flawed.
What King has done, of course, is set up the ultimate straw man — support judicial restraint and originalism ? Then you’re no better than the segregationists in Alabama. Its a phony argument, and King should be ashamed for making it.
The year before Rosa Parks took her stand by keeping her seat, the Supreme Court reviewed the legal precedent established decades earlier in Plessy v. Ferguson, which blessed the “separate but equal” doctrine. Settled law though Plessy may have been, the “liberal” Supreme Court under Chief Justice Earl Warren ruled in Brown v. Board of Education that school segregation “solely on the basis of race” violated the equal protection clause of the 14th Amendment.
Again, Plessy v. Ferguson was not an example of originalism. The result in Brown was 100% correct, the only problem with the decision is that it relied more on sociological studies about the effect of segregation on black children than it did the original intent of the 14th Amendment.
King then goes through a laundry list of benefits he contends judicial activism has brought America, several of which are clearly not the product of activism at all. Were it not for activist judges, he asks, how long would it have been before:
Rosa Parks could have sat anywhere she wanted on a bus?
As I said above, this is total nonsense. The original intent of the 14th Amendment is incompatible with the Jim Crow laws that Rosa Parks was fighting against. Sadly, it took 100 years before the Courts recognized this fact.
Miscegenation laws would have been invalidated?
See above. Again, I would take the position that any laws that discriminate on the basis of race, including one that forbid blacks and whites from marrying is per se invalid under the 14th Amendment. An originalist interpretation of the Amendment would have recognized that long before Loving v. Virginia.
King then gets to the penultimate point of his screed:
Who are the opponents of “liberal judicial activism”? There’s no one-size-fits-all description. But some of the loudest voices belong to those who never liked the civil rights movement or the series of landmark cases that expanded rights under the Warren Court. They never saw a court-ordered desegregation remedy they could stand or a states’ rights doctrine that didn’t trump the rights of racial minorities.
They are the sort of folks who believed Arkansas Gov. Orville Faubus had a point when he used state troopers to block nine black students from entering Little Rock’s Central High School even though it was under a federal court’s desegregation order. They tend to disparage any and all decisions they don’t like as the personal preferences of high-handed judges exceeding their jurisdiction. To them, anyone who spends time knocking down barriers faced by folks who are not white and male is automatically suspect.
So there you have it. If you support judicial restraint and originalism, you are a segregationist racist just waiting for the day that you get that last Justice on the Court and the “Whites Only” signs can come back up. What bull. King should be ashamed of himself for even making such an argument. I doubt that he is, however.
Linked with Wizbang’s Carnival of the Trackbacks and Stop the ACLU and Don Surber and The Blue State Conservatives and Oblogatory Anecdotes and Outside The Beltway
Related Posts:
Rosa Parks vs. The State
Fixing The Third Branch Of Government
