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To: Carry_Okie
I am trying, in my own limited way, to get conservatives to reconsider using the Federal courts as a venue whereby to regain accountability in government and respect for the Constitution. Are you doing that? Have you taken the time and trouble to write one? Maybe it's worth your time; maybe it isn't.

It's probably not, for the simple reason that no matter what anyone would like, we're not going to roll the clock back to 1868 and re-adopt an "originalist" 14th Amendment. These issues are settled, and at this point, it's just too much to undo--it's too much to undo even the jurisprudence from, say, 1954 on. It can't happen, for a lot of reasons.

As I mentioned on another thread, while a lot of people say they don't like "judicial activism," what they mean is NOT that they don't like judges expanding the meaning of the constitution, what they don't like is judges expanding the meaning of the constitution in a way with which they disagree. For instance, take Brown. I think it's really beyond debate that Brown was wrongly decided from a legal perspective. Shoot, Warren didn't even really try to defend it in the opinion, other than to say that it's obvious that segregation is unconstitutional. It's really not so obvious, but that's not the point; while Brown was certainly controversial at the time--especially in the South--Brown is pretty much universally accepted now as a "right" or "progressive" decision by the Court. Everyone knowns that Brown was wrong and feels guilty about it, which is why there are about a zillion law review articles that try and defend it, but everyone also agrees, for the most part, that it was a good thing on balance.

That's the hard part. An original intent 14th Amendment world is very different than the one we live in today. Schools could be segregated on the basis of race, the government could (at least indirectly, if not outright) discriminate on the basis of race with respect to the franchise, 15th Amendment notwithstanding (it's hardly been used, anyhow), the government could discriminate on the basis of sex in every manner, it could discriminate against the handicapped or the mentally ill or whatever. Are you totally comfortable with that? Even if you are, that's great, I applaud you for your consistency, but anyone has to admit that it leads to uncomfortable results.

But, of course, uncomfortable results would be fine if the political process worked correctly. Democracy (or Republicanism, whatever) is great if everyone acts in good faith, but what if one group in power systemically discriminates against other minority groups? The political process breaks down because people don't act in good faith. They are rent-seeking. There is an interesting law review article that talks about game theory and the political process theory that addresses this very point: that game theory drives majority groups to systemically discriminate against minority groups in order to maximize their own benefit.

So if the political deck is stacked, then relying on the political process to rectify the failings of government is self-defeating. Moreover, even if you don't accept the notion that the political deck is stacked, you have to admit that there is a breakdown when majority groups attempt to circumvent the political process by restricting either access to the franchise (or by diluting voting strength) or reducing the practical ability of certain groups to participate in the political process (by, say, substandard education). In both these situations, the political process is no answer at all. Take Brown again, for instance. Let's say Vinson didn't die and Brown was decided the other way, which would have been a distinct possibility. Assuming the judiciary stayed out of the civil rights movement altogether, how long would it have taken to desegregate schools? 1970? 1980? It probably would have happened eventually, but how much longer? Is 25 or 35 years an acceptable time frame for the political process to correct errors? If not, what's the answer?

Look, I'm not saying this to mean that originalism should be questioned or doubted; I think it's the best way to interpret the constitution. What I am saying that's it's not such a black and white issue as some folks want to make it out to be. Originalism leads to some bad results sometimes that might not always be fixed by the political process, and then you've got a real dilemma. I don't think Ely's political process theory is an acceptable answer, but I don't know what the answer is. That's the hard part.

144 posted on 08/25/2005 11:03:49 PM PDT by Publius Valerius
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To: Publius Valerius
Everyone knowns that Brown was wrong and feels guilty about it

I don't know who this "everyone" is that you're referring to, but the vast majority of Americans have no idea that it was wrongly decided. They've all been told from grade school on that it was a triumph of the Constitution against a corrupt system that managed to resist its dictates for so long.

In fact, not only do they not know that it was wrongly decided, they don't even really know what it decided. Contrary to widespeard popular belief, it did not overturn Plessy vs Ferguson. Instead, it went through contortions to try to uphold that earlier precedent while insisting that it didn't apply to the field of public education. The upshot was that the court decided, probably for the first time ever, that a law or policy can be unconstitutional because of the way it makes those affected by it "feel". That's a horrible precedent to set.

If "everyone" was aware of these things, then it's highly likely that not "everyone" would consider it a good thing.

146 posted on 08/26/2005 7:11:57 AM PDT by inquest (FTAA delenda est)
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