The High Court and 2008
Oftentimes when I read noted Newsweek columnist Anna Quindlen, I must confess a common, uncharitable reaction: “That is the most mindless drivel that has ever been printed in an American magazine.” If I may continue the insults for at least this sentence, I shake my head knowingly as I read her biography, which notes her time as an op-ed columnist for the New York Times. (Their place as an organ of rank, illiberal, apologists for statism is well assured.) But this piece is worth something. She is more than correct to note the place the Supreme Court has had in shaping our views of the Constitution, an effect that we take for granted whether we cheer the Court or not. She is, however, blatantly wrong to impugn judicial restraint by citing Brown v. Board as an example of judicial activism. In reality, it was nothing of the sort.
We must remember that Brown v. Board of Education of Topeka (1954) was a high-profile, historic flag planted in the demolished bunker of segregation. It has more symbolic power than even its historic actual results, though those cannot be denied. Were that case the only political victory that is helping us realize equality before the law irrespective of race, perhaps Quindlen’s assertion would have merit. But to pretend that it was alone would be to disrespect all who fought tirelessly for their rights over two centuries! Recall at the very least that the 13th, 14th, and 15th Amendments to the Constitution were added quickly after the Civil War. Had those been esteemed at the time as the outworking of inalienable rights set forth in our founding documents, the sad history of the fight for equal rights would be much shorter. We fought, as a nation, the bloodiest war in our history to secure these rights. We radically modified the Constitution itself three times (!), a nearly impossible task to do once. Two presidents lost their lives trying to execute the dictates of the people regarding civil rights. In other words, the other branches did plenty of acting on these matters, but Americans were still denied the exercise of their rights. What better time for the Court to defend the Constitution than at that time will you ever find? Rights were long articulated, and long denied, by majorities and pluralities of people. They were tyrants, who mistook our republic for a democracy, men who used the tools of decision as tools of oppression. Our rights have never—(nor should they ever)--depended upon the will of a majority. Therefore, it was not an activist Court who ‘found’ such rights, it was a Court who correctly saw their decision as the natural consequence of the Constitution’s enumerated rights and the people’s diligent use of their inalienable rights, which they dare not impede. Whether it was racially progressive at the time to affirm these inherent rights, or whether supported by most people (or most originalists) is entirely irrelevant. Given the Constitution, Brown v. Board was entirely consistent with originalism. If it were not, Dr. King could not have appealed to the Declaration and the Constitution with such great success. We the people had already decided, with great cost, what rights an American has. It was a rejection of the majority, a rejection of democracy that helped all of us realize the implications of liberty. And so, I want judges who will settle the disputes of the day in terms set by the Constitution, in either its limitations upon governments, or in its inhibition of tyrannical majorities, who would deprive individuals of their inalienable rights.
Oftentimes when I read noted Newsweek columnist Anna Quindlen, I must confess a common, uncharitable reaction: “That is the most mindless drivel that has ever been printed in an American magazine.” If I may continue the insults for at least this sentence, I shake my head knowingly as I read her biography, which notes her time as an op-ed columnist for the New York Times. (Their place as an organ of rank, illiberal, apologists for statism is well assured.) But this piece is worth something. She is more than correct to note the place the Supreme Court has had in shaping our views of the Constitution, an effect that we take for granted whether we cheer the Court or not. She is, however, blatantly wrong to impugn judicial restraint by citing Brown v. Board as an example of judicial activism. In reality, it was nothing of the sort.
We must remember that Brown v. Board of Education of Topeka (1954) was a high-profile, historic flag planted in the demolished bunker of segregation. It has more symbolic power than even its historic actual results, though those cannot be denied. Were that case the only political victory that is helping us realize equality before the law irrespective of race, perhaps Quindlen’s assertion would have merit. But to pretend that it was alone would be to disrespect all who fought tirelessly for their rights over two centuries! Recall at the very least that the 13th, 14th, and 15th Amendments to the Constitution were added quickly after the Civil War. Had those been esteemed at the time as the outworking of inalienable rights set forth in our founding documents, the sad history of the fight for equal rights would be much shorter. We fought, as a nation, the bloodiest war in our history to secure these rights. We radically modified the Constitution itself three times (!), a nearly impossible task to do once. Two presidents lost their lives trying to execute the dictates of the people regarding civil rights. In other words, the other branches did plenty of acting on these matters, but Americans were still denied the exercise of their rights. What better time for the Court to defend the Constitution than at that time will you ever find? Rights were long articulated, and long denied, by majorities and pluralities of people. They were tyrants, who mistook our republic for a democracy, men who used the tools of decision as tools of oppression. Our rights have never—(nor should they ever)--depended upon the will of a majority. Therefore, it was not an activist Court who ‘found’ such rights, it was a Court who correctly saw their decision as the natural consequence of the Constitution’s enumerated rights and the people’s diligent use of their inalienable rights, which they dare not impede. Whether it was racially progressive at the time to affirm these inherent rights, or whether supported by most people (or most originalists) is entirely irrelevant. Given the Constitution, Brown v. Board was entirely consistent with originalism. If it were not, Dr. King could not have appealed to the Declaration and the Constitution with such great success. We the people had already decided, with great cost, what rights an American has. It was a rejection of the majority, a rejection of democracy that helped all of us realize the implications of liberty. And so, I want judges who will settle the disputes of the day in terms set by the Constitution, in either its limitations upon governments, or in its inhibition of tyrannical majorities, who would deprive individuals of their inalienable rights.
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