Thursday, October 25, 2012
What follows will not be a socially acceptable opinion. There are many that will label me a racist, out to destroy every civil right success. So to preface the claims that follow, it is important to note that they come from a strict legal review of the situation, and reflects how I have reviewed the established rule of law.
I recently held a discussion with a legal associate on the merits and differences between the ideas of Constitutional Originalist and the belief in the Living Document. In the interest of full disclosure, I championed the cause of Originalist, as would be indicated by previous postings, and she supported the Living Document. While we were both impassioned for our cause, the discussion was amiable.
First, to avoid confusion, and demonstrating the importance of the meaning of words, we established an understanding on the basis of Originalist and Living Document, and to that end I will echo our shared definitions here:
- Originalists believe that the words of the Constitution were set upon their ratification. Their meaning allows for only one interpretation. However, the Constitution is not a finite document, and processes have been included to modify it as society evolves.
- The Living Document is designed to last the duration of our country. Therefore, as society changes and the legal needs evolve, the interpretation of the words of the Constitution must change to reflect that.
With that understanding set, she posed the following question to demonstrate the merits of the Living Document, which I addressed from an Originalist perspective.
“Consider two Supreme Court cases, Plessy v. Ferguson (1896), which established the legal doctrine of Separate but Equal, and Brown v. Board of education (1954), which defined Separate as inherently unequal. Since the decision of each case was based in the guarantee of Equal Protection of the Law regardless of race, as defined by the Fourteenth Amendment, how do you reconcile the difference in interpretation?”
Admittedly, at the onset of the discussion I was at a disadvantage of not knowing the particulars of either case, yet I held a firm understanding of the merits of the Fourteenth Amendment. To level the field, my associate related the details of the two cases. Plessy v. Ferguson regarded the claim of Homer Plessy, a man of mixed ancestry, who claimed his Fourteenth amendment rights were violated when he was arrested for declining to move to the “colored’s only car” of train. The courts ruled that since the accommodations for “whites and colored’s” were equal, the railways policy of segregation was not a violation of his Fourteenth amendment rights. The decision, coined as Separate but Equal, justified the actions of segretationalists and was extended to schools, voting rights, and mundane items such as water fountains and restrooms. However, the doctrine was overturned in Brown v. Board of Education. Demonstrations of differences in accommodations between white and black schools were used to postulate that separate is inherently unequal. The Brown court held: “We conclude, in the field of public education, the doctrine of Separate but Equal has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are by reason deprived of equal protection of the laws as guaranteed by the Fourteenth amendment.” Despite the doctrine being found unconstitutional in this case, its application would continue until it was finally expunged by the Civil Rights Act of 1964.
In light of the specifics of those two cases, and my understanding of the Fourteenth amendment, I provided my answer with no regard to political correctness. At this point, I ask that you bear with me as I state my case, holding judgment and personal attacks till the end. The argument of separate being inherently unequal is logically false. While it can be demonstrated that inequalities existed between separated entities, this only implies a failure of each being held and maintained to an equal standard. The decision made in the Brown court was not in keeping with the limitations of the Constitution, but rather an act of judicial activism for the sake of political expediency. The Fourteenth amendment provides for the equal protection of the law for all citizens, regardless of race. No measure is given, or direction, for integration of the races. In overturning the doctrine of Separate but Equal, social concerns were allowed to trump the Rule of Law.
Now, do not misconstrue that assertion to imply that I support segregation, or worse, I hold one race superior to the others. In practice, segregation is socially deplorable and economically infeasible. However, as long as the accommodations or legal protections offered to all parties were equal, even if separate, there was no violation of the Constitution as written. Further, there was no Constitutional authority to enforce efforts of integration, but only the strength to ensure that each party is accommodated equally. From this stance, the portions of the Civil Rights Act of 1964 that encourage or force integration, while being morally important and in service to a strong society, are unconstitutional. The extension of this authority through an overreach of the Commerce Clause is also unconstitutional.
The appropriate action for the Brown court would have been to hold to the Separate but Equal doctrine, and enforce sanctions on the municipalities that failed to provide equal accommodations. If the parties involved were unable to provide separate but equal accommodations, due to limited resources, than equal share of the current accommodations should have been granted until separate but equal ones were available. Economically speaking, the cost offering equal but separate accommodations to each portion of the market, as defined by race, would be much greater than providing one standard of accommodations to the whole market. Further, since the separate portions would compete for the same resources, and must be equal in standards, than each would be of a lower grade than the one standard that could be offered to the whole market. If the court had held to the constitutionally supported doctrine of Separate but Equal, enforcing that all separate accommodations offered within the jurisdiction of the Government be equal, economy of scale would have driven the problem to the morally acceptable conclusion.
Regarding the concept of separate being inherently unequal, if that was the socially appropriate norm of the time, the country would have been better served if that principle had been added to the Constitution through the amendment process of Article V. If politicians, and more importantly the citizens, wanted the government to be invested with the authority to force the moral issue of integration, than an amendment should have, and still must be, made to the Constitution. Instead, the Supreme Court was allowed to re-determine legislative policy from the bench, and in effect weaken the protections offered to the American citizen by the Constitution. No matter how socially acceptable this action was, or even has become, it is still an affront to the limitations placed on the government by the Constitution. If such a violation of the rule of law can occur, than it can be repeated. The next time, it may be against the will of the American citizenry and in service to tyrannical oppression.