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November 17, 2005
Brownian Motion: a Moderate Proposal*
In this day, it has become an article of faith--even among many liberals-- that Roe V. Wade was poorly decided, and makes for bad law. By imposing the Rule of Law over the whim of the majority, activist judges proved that they could find in the constitution any rights at all—even ones which are not specifically enumerated.
Even more pernicious, however, is another ruling, made by another group of unelected, unaccountable so-called justices. The decision, of course, is BROWN v. BOARD OF EDUCATION.
This decision is pernicious, not in its actual effect, but in the way the constitution, precedent, and the will of the majority is twisted to arrive at that effect. Few would still publicly argue that segregation is a good thing. And yet none were given the choice—segregation was not overcome by a state by state campaign that changed hearts and minds, but rather by judicial fiat.
The bare reasoning is suspect. The court did not rest on the precedent of “separate but equal”, the bedrock of Southern law for generations, but rather upon finding within the Constitution—the 14th amendment— the idea that self-esteem ought to be a goal. The very language of the court speaks not of “tangible” goods, but rather tries to quantify that which is intangible. As if such a thing were not a flat contradiction!
Moreover, the court specifically rejected an originalist reading saying “we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” If the court can turn the constitution into a “living document”, it won’t be stopped anywhere—they can find any right at all within the clear text of the constitution.
Perhaps worst of all, this decision created a class of rights for some at the expense of the rights of others. For every black parent who now had the “right” to send their child to a better school, the court created a white parent who no longer had the “right” to send their child to a segregated school. What right could be more precious than the rights of a parent to choose how their child is raised? By a single act of judicial activism, the Court stripped every parent of that most basic right.
Of course, it should be noted that even if we overturn the Brown decision, Segregation would not return. No, it would be left up to each individual school district to decide whether they want to return to the traditional moral values of their forefathers. Those of us who oppose segregation would be allowed to present the case to our local school boards, to truly win the hearts and minds of our fellow citizens. After all, that is the principle enshrined within our constitution: majorities getting to do what they want.
*This title is supposed to invoke Swift’s modest Proposal. This is to let everyone know that this post is Satire, and not to be taken literally...
Posted by Andrew at November 17, 2005 10:04 PM
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