I don’t always agree with my fellow Virginia blogger Vivian Paige, but I do respect her and take her arguments seriously.
She’s a Democrat and I’m a libertarian who used to vote Republican, so we have some things in common, but alot of differences. However, unlike some others on the other side of the aisle, and even though I haven’t met her in person, I get the impression that she’s not exactly like the representatives of her party that I’ve encountered in that galaxy far, far away called New Jersey.
Nonetheless, I think this idea is entirely incorrect:
Untempered by precedent, [Constitutional] originalism would require reversing Brown v. Board of Education, the principle of one person-one vote and landmark cases guaranteeing the right to free speech.
Vivian makes this comment in connection with a post about the Supreme Court’s decisions last week about segregation in public schools.
There is no question that government mandated segregation in public schools is not only wrong, but unconstitutional. The text of the 14th Amendment is clear. The problem isn’t in the Constitution or in the 14th Amendment, it’s in the Courts who were supposed to have enforced it in the years after the Civil War.
Quite frankly, there came a time in the late 1800’s where the North stopped caring about what going on in the South, and the CSA revisionists in the South took advantage of it. The result was Jim Crow and a century of second-class citizenship.
As a result, we had decisions from the Supreme Court like those in Plessy v. Ferguson which perpetuated the idea that the state had the right, or even the authority, to discriminate between human beings on the basis of race.
Those decisions were not an example of originalism. They were an example of judges stretching the law to justify their prejudice.
It took time, but eventually, the law caught up with reality. And, in part, Brown v. Board of Education was part of that process. An originalist interpretation of the 14th Amendment would, I think, go as follows:
The reason that the Court’s decision in Brown was correct is because it was wrong for the Topeka Board of Education to discriminate against students based on their race. A plain reading of the 14th Amendment should have made that clear. Unfortunately, the Court’s opinion, along with decades of previous 14th Amendment case law, muddied the waters as much as it cleared them up because it relied more on social science studies of the detrimental impact of segregated schools on black children than it did on the plain fact of the matter that the 14th Amendment was clearly intended to make the Constitution colorblind. We’ve been paying for the Court’s mistaken reasoning in that case ever since.
And that’s where things have gone wrong ever since.
Update: To be fair and correct, I attributed to Vivian something that was posted by another blogger which she linked to. And, well, I misspelled her last name (I think I did that once before too, sorry Vivian).
July 6th, 2007 at 11:25 pm
Um, Doug, I didn’t make that comment. I quoted it from an earlier post which appeared on The Huffington Post. And what that writer said is exactly what has happened.
Oh – and it’s Paige, with an i.
July 7th, 2007 at 12:48 am
The argument cited, Doug, is of course part of the far Left myth/smear that originalism is, at its roots, racist. A rather funny accusation, when one considers that the paternalistic attitudes of the far Left in matters of race have much more in common with the “softer” racist motivations of someone like Jefferson Davis (i.e., Blacks are not capable of looking after themselves, so Whites have to “help” them) than originalism has in common with racism.
You make the appropriate point that the biggest problem with the Brown formulation is its reliance upon malleable/fashionable social “science” data, rather than upon the transcendant principles perhaps best expressed by the first Justice Harlan in his Plessy dissent.
The problem, of course, is a Court more interested making law in accordance with what is politically fashionable than in interpreting existing law within its limits. It’s the difference between arrogance and humility.
July 7th, 2007 at 8:58 am
Good post. I have a similar impression of vjp. Nice lady. Runs a good blog, but I don’t always agree with her.
It is unfortunate vjp does like to debate. Hence she nitpicked some technical details without addressing the core of your argument.
When you really want to debate, you have to comment on her blog. Some of her ornery readers will respond.
What concerns me is how some people define “precedent”. Consider that infamous abortion decision. When hundred years goes by, is that not precedent? Does only one decision our way constitute all the precedent that counts?
Before we worry about precedent, we are obligated to look at the law itself. When it does not conform to the law, there is nothing wrong with overturning a bad decision.
We must make honorable laws and insist upon an honorable interpretation. Otherwise, government itself becomes a threat to our liberties.
It is our sacred honor, not the Law that makes for good government. If we are not committed to obeying God’s commands, we cannot make good laws. If we do not insist upon honorable behavior, our courts will not make honorable decisions. The Law will not be honorably enforced, and what we have on paper will make no difference.
Sometimes, if we honor the wrong things, even honor is not enough. Without government interference, for example, slavery would not have “worked”. Without government help and approval, the slave owners could not profitably own slaves. Ultimately, state and local governments kept the slaves in bondages, not their “owners”. The slave owners merely advocated and profited from this peculiar institution.
When Southerners supported slavery, they did so in direct contravention of their own religious beliefs. They looked for and somehow they “found” a loophole in the command to love our neighbor. So just as too many of our “elite” does now, they rationalized that the slaves were their inferiors needed to be slaves.
Ahh — those ignorant masses. Their spirit is willing, but their flesh is so weak.
July 7th, 2007 at 12:52 pm
I make no claim to be a constitutional scholar, which is why I felt no need to address Doug’s point. In my post, I simply pointed out that The Huffington Post writer of the original piece was almost prophetic in his statement about where the court was going. On top of that, it was a much broader stroke than just the decision on race. That’s why I linked to the Helen Thomas story.
I think you all just assumed that I was referring only to the one case, when in fact, I was not.
July 7th, 2007 at 6:04 pm
vjp – Let’s look at what Scalia said in that 2006 AP article(here). Scalia criticized those who believe in a “living Constitution.”
“That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.”
“But you would have to be an idiot to believe that,” Scalia said. “The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”
Because too many judges refuse to base their decisions on written law and long standing traditions, judicial appointments have become the stuff of politics. When judges call the Constitution a “living document” and deliberately set out to “incrementally” change it, is that truly honorable? Doesn’t the Constitution include an amendment process? When we want to change the Constitution, what is wrong with using the amendment process?
When Scalia calls the Constitution a legal document, consider what he is saying. What are legal documents? When you sign for a mortgage on your house, you establish a covenant with the lender — legally agreeing to certain conditions. How would like that document to be a “living document”. Would you like it when interest rates go up and a judge arbitrarily decides to change the deal you made with the lender?
Does the honorific “honorable” make anyone an honorable? If you don’t think so, then be careful what you wish for. You might get lots of judges who think all legal documents are living little creatures.